Bombay High Court
Bhagwan Sitaram Ghuge vs Sau. Suntia Bhagwan Ghuge on 20 February, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 WP8389-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.8389 of 2018
...
Bhagwan Sitaram Ghuge,
Aged about 56 years,
Occupation: Service (Teacher),
Ahilyabai Holkar Vidyalaya, Vihigaon,
R/o Vihigaon, Tah. Khamgaon,
Dist. Buldhana. .. PETITIONER
.. Versus ..
Sau. Sunita Bhagwan Ghuge,
Aged about 46 years,
Occupation: Household,
R/o Andhera, Tq. Deulgaonraja,
Dist. Buldhana. .. RESPONDENT
Mr. H.R. Gadhia, Advocate for Petitioner.
Mr. A.D. Bhate, Advocate for Respondent
....
CORAM : MANISH PITALE, J.
DATED : FEBRUARY 20, 2019.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 :::
2 WP8389-18.odt
2. By this writ petition, the petitioner has challenged order dated 29.09.2018 passed by the Court of Civil Judge, Senior Division, Khamgaon, district Buldana (executing Court), whereby the said Court directed that if the petitioner was unable to bring stay order from a higher forum or if he failed to deposit substantial decretal amount, an arrest warrant be issued against him for detention in Civil Prison in terms of the procedure prescribed under the Civil Procedure Code, 1908.
3. The petitioner and the respondent are husband and wife. The instant litigation arises out of an agreement dated 30.12.2005 entered into between the parties whereby the petitioner had allegedly agreed to pay half of his salary and amount in insurance to the respondent wife and half of his provident fund and retirement benefits. The petitioner had filed a suit for declaration that the said agreement was null and void and not binding upon the petitioner. On the other hand, the respondent had filed a suit for declaration and other benefits claiming that the said agreement was binding between the parties. The original Court dismissed the suit filed by the petitioner while granting decree in the suit filed by the respondent. Accordingly, the petitioner was required to pay an amount of Rs.1,27,230/- along with direction to comply with ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 ::: 3 WP8389-18.odt other terms of the agreement.
4. Aggrieved by the said decree passed against him, the petitioner filed Regular Civil Appeal No. 38 of 2015 before the Court of District and Sessions Judge, Khamgaon. During the pendency of the appeal, the respondent approached the executing Court for execution of the aforesaid decree. It has come on record that an application for stay of the decree filed by the petitioner remained pending for hearing and decision before the appellate Court, while the executing Court proceeded with the application for execution filed on behalf of the respondent. It is in these execution proceedings that the impugned order dated 29.09.2018 was passed.
5. On 11.12.2018, while issuing notice and granting stay of the impugned order, this Court directed the petitioner to deposit an amount of Rs.1,30,000/- before the executing Court. The said amount has been admittedly deposited by the petitioner before the executing Court and an affidavit to that effect has been filed before this Court.
6. Mr. H.R. Gadhia, learned counsel appearing for the petitioner, submitted in support of the writ petition that the ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 ::: 4 WP8389-18.odt impugned order passed by the executing court was in violation of procedure prescribed under Section 51 read with Order 21 Rules 37 and 40 of the Civil Procedure Code, 1908. It was contended that an order of detention in civil prison could be passed only as a matter of last resort when all other options for recovery of the decretal amount were exhausted. It was submitted that there was material placed on record that the petitioner had attempted to pursue the appeal filed before the appellate Court and that partly due to the transfer of the Presiding Officer of the appellate Court and partly because the appeal could not be taken up for one reason or the other, the orders on interim relief could not be obtained from the appellate Court. It was further submitted that the petitioner had placed on record material before the executing Court to show that he was now not in employment and that he had taken voluntary retirement. On this basis, it was contended that the factual position was completely ignored by the executing Court while passing the impugned order. Reliance was placed on judgment of this Court in the case of Sanjay Mahendra Pawar .vs. Malegaon Municipal Corporation and another - 2005 (Supp.)Bom. C.R. 666.
7. On the other hand, Mr. A.D. Bhate, learned counsel ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 ::: 5 WP8389-18.odt appearing for the respondent, submitted that the petitioner had deliberately avoided payment of amount in terms of the decree passed against him. It was submitted that before the executing Court there was sufficient material brought on record to show that the petitioner was guilty of avoiding to abide by the decree and he also failed to obtain orders of interim relief from the appellate Court. It was further submitted that there was also a matrimonial dispute between the parties, wherein orders for grant of interim maintenance to the respondent had been passed but the same had not also been complied with by the petitioner. It is submitted that there is a daughter out of the wedlock and that the respondent and the girl child are deprived of amounts towards even interim maintenance due to the approach of the petitioner. It was submitted that the petition for divorce filed by the petitioner had been dismissed and the appeal filed against it was partly allowed and the matter was remanded to the trial Court, but after remand, the divorce petition stood dismissed for default on the part of the petitioner in depositing necessary amounts. It was submitted that although the respondent was not really interested in having the petitioner detained in civil prison, at the same time the petitioner could not go scot-free while repeatedly violating orders of competent courts to pay money to the respondent. ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 :::
6 WP8389-18.odt
8. Heard counsel for the parties and perused the record.
9. A perusal of the impugned order does show that the executing Court has failed to apply the position of law that emerges from the judgment relied upon by the learned counsel for the petitioner in the case of Sanjary Mahendra Pawar .vs. Malegaon Municipal Corporation and another (supra). There is no finding rendered by the executing Court that the petitioner was deliberately not depositing amount in satisfaction of the decree, despite having resources to do so. The material placed on record by the petitioner as regards his alleged dire financial condition, was not taken into consideration by the executing Court. The executing court also failed to take into consideration the material placed on record showing that the appeal filed by the petitioner was now pending before the appellate Court and that orders were yet to be passed on the application for interim stay. It appears that the executing Court has proceeded to pass the impugned order to issue arrest warrant against the petitioner in a casual manner by merely observing that if interim order is not brought by the petitioner within a reasonable time of one month or substantial decretal amount is not deposited, such warrant of ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 ::: 7 WP8389-18.odt arrest would be issued. This is clearly in the teeth of requirement of Section 51 read with Order 21 Rules 37 and 40 of the C.P.C. read with aforesaid judgment relied upon by the learned counsel for the petitioner.
10. Yet, the material on record does show that the respondent has been deprived of the fruits of the decree and that there is material on record to show that there are orders faced by the petitioner for payment of amounts to the respondent in the said proceedings. In these circumstances, while this writ petition deserves to be allowed, appropriate directions are required to be given as regards the amount of Rs.1,30,000/- deposited by the petitioner in the executing Court in terms of order dated 11.12.2018 passed by this Court.
11. Hence this writ petition is allowed and disposed of in the following terms:-
(i) The impugned order dated 29.09.2018 passed by the executing court is quashed and set aside.
(ii) The respondent is permitted to withdraw the amount of Rs.1,30,000/- deposited by the petitioner before the executing Court in terms of order dated 11.12.2018 passed by this Court, subject to the decision in Regular Civil Appeal No. 38 ::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 ::: 8 WP8389-18.odt of 2015 pending before the Court of District and Sessions Judge at Khamgaon.
(iii) The Court of District and Sessions Judge at Khamgaon, is directed to take up the application for stay filed by the petitioner in Regular Civil appeal No.38 of 2015 and to pass the orders on the same within a period of four weeks from today. If the said Court allows the application, it would be at liberty to impose such conditions at it thinks fit, for grant of stay of the execution of the decree, taking into account the deposit of the aforesaid amount by the petitioner before the executing Court.
(iv) The proceedings before the executing Court shall be taken up subject to further orders that may be passed by the Court of District & Sessions Judge at Khamgaon in the Regular Civil Appeal No.38 of 2015.
12. Rule made absolute in the aforesaid terms with no order as to costs.
(Manish Pitale, J. ) ...
halwai/p.s.
::: Uploaded on - 25/02/2019 ::: Downloaded on - 20/03/2019 13:43:02 :::