Allahabad High Court
Kalimmulla vs Addl. Prin. Judge Family Court 5Th ... on 19 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:60089 Court No. - 29 Case :- CRIMINAL REVISION No. - 1004 of 2023 Revisionist :- Kalimmulla Opposite Party :- Addl. Prin. Judge Family Court 5th Lucknow And 2 Others Counsel for Revisionist :- Pal Singh Yadav Counsel for Opposite Party :- Krishana Kumar Singh Hon'ble Ram Manohar Narayan Mishra,J.
1.Heard learned counsel for the revisionist and learned counsel for respondent no. 2 and perused the material on record.
2. By means of instant criminal revision under Section 19 (4) of Family Courts Act, the revisionist has assailed the order dated 02.09.2023 passed by learned Additional Principal Judge Family Court-5th Lucknow in Misc. Criminal Case No. 30C of 2011; Mehroz Jafri versus Kalimmulla, passed under Section 125 (3) Cr.P.C., whereby learned court below has decided the Misc. Application No. 125 (3) Cr.P.C. moved by applicant Mehroj Jafri for enforcement of ex-parte judgment dated 22.01.2011 wherein, she has prayed for being provided a sum of Rs. 505000/- as maintenance from 06.02.2018 to 05.02.2011 @ of Rs. 20,000 per month for twenty eight months. In impugned order learned court below has narrated the sequence of events related to filing of said misc. application by the applicant, the learned court below after hearing submissions of learned counsel for both sides had directed for RBS India Development Centre Private Limited Gurgoan that out of amount of Rs. 420032/- withheld order dated 04.01.2013 lying in the account of opposite party Kalimmulla Rs. 345595 will be deposited in favour of the applicant Mehroj Jafri in the bank account of Principal Judge Family Court, Lucknow, which is existing in Bank of Baroda, Lucknow Branch within five working days, so that the same may be released to her with condition that if any, adverse order has been passed by Hon'ble High Court in pending Criminal Revision No. 822/2011 and Criminal Misc. Application No. 7632/2019, the applicant will be liable to deposit the amount received by her in said bank account of Principal Judge Family Court, Lucknow under Section 125 (3) Cr.P.C. in original Criminal Case No. 924 of 2008 under Section 125 Cr.P.C. The learned court below by way of ex-parte judgment dated 22.01.2011 has awarded maintenance to the tune of Rs. 20,000/- per month from the date of filing of application to the respondent.
3. The applicant has prayed for payment of Rs. 505,000/- twenty eight months' maintenance @ Rs. 20,000/- per month. A notice of recovery was issued to opposite party who did not appear before the court and recovery attachment warrant was issued against him. The opposite party even did not turn up after issuance of passing the said warrants. Thereafter, the court below passed an order for deduction of amount of maintenance from salary of opposite party and necessary orders were passed to employer of the opposite party, who deposited of Rs. 1,59,408 in the Court from salary of the opposite party for four months. The amount deposited was received by the applicant. Thereafter on 04.01.2013 an order was passed. An application C-25 moved by RBS India Development Centre Private Limited, Gurgaon, the employer of the opposite party through counsel wherein it was informed that opposite party has been ousted from service and he will be paid an amount of Rs. 4,20,032/- as settlement. The bank had sought direction from the Court to specify that the amount, which is liable to be deposited in the Court and the application may be placed on record. The learned court below has also stated that it is informed by learned counsel for the applicant that an amount of Rs. 5,50,000 is still outstanding towards maintenance, whereas learned counsel for opposite party informed that an application under Section 127 Cr.P.C. has been filed by him. In these facts and circumstances it would proper that the bank should be restrained to make payment of said amount to the revisionist. The application C-25 moved by the employer is disposed of and bank is directed to deposit Rs. 345595/- out of withheld amount Rs. 420032/- of the opposite party through bank draft in the Bank of Baroda account of Principal Judge Family Court, Lucknow, which will be payable to the applicant continuously.
4. Learned court below has also cited an order of this Court on petitioner under article 227 of the Constitution No. 3075 of 2023, dated 31.05.2023 to the effect that "in view of the aforesaid facts, the opposite party No. 1/ learned Additional Judge-5th Family Court, Lucknow" is directed to dispose of the aforesaid execution case expeditiously in accordance with law without granting any unnecessary adjournments to any of the parties within a period of three months from the date of certified copy of this order. Thereafter, the court passed an order to opposite party to pay the outstanding amount of Rs. 3,45,592/- to the applicant to which the opposite party has filed a Misc. Case under Section 127 Cr.P.C. for setting aside ex-parte judgment dated 22.01.2011 as Misc. Case No. 131C of 2012 Kalimulla versus Mehroz Jafri under Section 127 Cr.P.C. and another Misc. Case No. 126-C of 2015 Kalimulla versus Mehroz Jafri under Section 340 Cr.P.C. have also been filed against the applicant and both the applications are pending before the court. Learned counsel for the revisionist submitted that till disposal of these two misc. applications, it would not be lawful to release the amount in favour of the applicant which is held up bank account of the opposite party, both the misc. applications were tagged together. The Court dismissed misc. case No. 131C of 2012 under Section 127 Cr.P.C. on merits as well as Misc. Application No. 126C of 2015 under Section 340 Cr.P.C. also vide order dated 24.08.2023 the opposite party was again directed to outstanding amount to the applicant otherwise recovery warrants shall be issued against him.
5. Learned counsel for the respondent no. 2 submitted that Criminal Misc. Case No. 82 of 2011 has been filed before the Court against ex-parte judgment dated 22.01.2011, which has been dismissed by Hon'ble Court on 29.03.2022. The opposite party has moved a recall application before Hon'ble Court, which was dismissed by order dated 06.05.2022 the opposite party moved an SLP issued by Hon'ble Apex Court SLP No. 16 of 2022, which was allowed by orders of Hon;ble Apex Court the order dated 29.03.2022 passed by High Court a Criminal Revision No. 82 of 2011 to its original number, which is still pending before the High Court, it is also informed by opposite party's counsel that in petition Section 482 Cr.P.C., no stay order has been passed by the High Court against the order dated 21.09.2019 and during the pendency of these petition the outstanding amount do not released in favour of the revisionist. The court concerned passed an order dated 28.08.2023 to the effect that the opposite party is directed to apprise the Court regarding status of Criminal Revision No. 82 of 2011 and also inform regarding status of Criminal Misc. Case No. 7632 of 2019 under Section 482 Cr.P.C. The court below has also observed that although both the said Criminal Revision and Criminal Misc. under Section 482 Cr.P.C. are still pending before the High Court but no interim or stay order has been passed by Hon'ble High Court.
6. Learned counsel for respondent no. 2 has also submitted that until as both the proceedings filed at the instance of respondents are pending before Hon'ble High Court, this court was bereft of jurisdiction to pass any order in the matter. The impugned order is an interlocutory order.
7. Although, this is an admitted fact that no stay order has been passed in both the proceedings and Criminal Misc. Case No. 131 of 2012 under Section 127 Cr.P.C. and Misc. Application No. 126-C/2015 under Section 340 Cr.P.C have been decided by vide order dated 24.08.2023.
8. The Hon'ble High Court has passed an order on 31.05.2002 to disposed of the case expeditiously in accordance with law within a period of three months.
9. Learned court below has passed an order that employer (previous) of the opposite party is directed to deposit an amount of Rs. 3,45,595/- the outstanding amount of maintenance from amount Rs. 4,20,032/- withheld in the bank by orders of the Court through bank-draft in favour of the applicant, the amount will be deposited in bank account of Principal Judge Family Court Lucknow within a period two days. The Court has placed a rider that the applicant will have to deposit the amount received by her in the bank account of Principal Judge Family Court in the event of passing any adverse order in Criminal Revision No. 82 of 2011 and also in Criminal Misc. Application No. 7632 of 2019, a copy of order has been directed to be forwarded to Royal Bank of Scotland-India Development Private Ltd. Centre, Gurgoan along with a copy on order dated 04.01.2013.
10. Learned counsel for the revisionist submitted that the marriage revisionist and respondent no. 2 was solemnized according to Muslim Rites and Rituals on 05.01.2008 and the espouse started a life together inGurgoan, Hariyana for few months and then the applicant return to Lucknow at the place of her parent on 21.05.2008. The respondent no. 2 shifted to her parental place in Lucknow after few months of her marriage and left the company of her husband lodged an FIR on 09.09.2008 by fabricating the facts and creating a false story of demand of dowry, which is registered by Crime No 376 of 2008 under Sections 498A, 323, 504, 506 I.P.C. and Section D.P Act at Police Station Qaiserbagh, Lucknow only with intention to harass and the put into trouble to the revisionist and his family member. She file an application on 06.10.2008 under Section 125 Cr.P.C. for maintenance the before learned Principal Judge Family Court, Lucknow on false and concocted facts which was decided ex-parte 22.01.2011, the respondent no. 2 is Income Tax payee she employed in MNC Bayer Cropscience Ltd. in Mumbai Maharashtra. She has contracted second marriage in the year 2010 by orders of Court resolution of marriage.
11. The next submitted that the learned court below passed an order dated 04.01.2013 an application C-25 moved by R.B.S. India Private LimitedGurgoan, which was disposed of with the observation that the concerned bank is directed to stop any payment to opposite party till further orders. Thereafter, an order was passed on 21.09.2019 in which it is stated the applicant Kalimmulla has filed a photo-copy of tender receipt dated 31.10.2015 to which no objection has been raised by learned counsel for the opposite party, the Court has observed wherein that as the amount in question has been withheld in bank account by orders of the Court in that situation the said amount would not be released without orders of the Court, by the bank and no harm appears to be caused to the applicant by keeping the amount withheld in bank account and therefore no any direction is liable to be issued in the matter.
12. Therefore, the present order is fate of said order dated 21.09.2019 and the same is hit by Section 362 Cr.P.C. which provides as under:-
"362. Court not to alter judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
13. He also submitted that the original and subsequent proceedings were taken by the parties in Section 125 (3) Cr.P.C. therefore, the bar of Section 362 Cr.P.C. will be applicable and the impugned order on that account also, the impugned order is not sustainable.
14. Per contra, learned counsel appearing for respondent submitted that the order dated 21.09.2019 is interim order and same is not hit by Section 362 Cr.P.C. as the Court has not altered any judgment now refute adversely passed, he also submitted that the proceedings under Section 125 Cr.P.C. provision of Section 125 Cr.P.C. a beneficial legislation, which provides for expeditious and efficacious remedy of maintenance by orders of criminal court to wife, children and parents and same jurisdiction of magistrate has been exercised the learned Family Court. The amount claimed by the petitioner is outstanding amount of maintenance and the learned court below has observed in the impugned order that in case of passing of any adverse order in criminal revision under Section 482 Cr.P.C. pending before this Court, the applicant will be liable to return the amount received by her. Therefore, there is no illegality irregularity or perversity in the impugned order.
15. This is an admitted fact that no stay or interim order has been passed by this Court in criminal revision No. 82 of 2011 and under Section 482 Cr.P.C. Case No. 7632 of 2019 merely due to fact that some proceedings are pending before this court, the applicant cannot reply of her amount of maintenance awarded by court below particularly in view of the fact that the said order has not been set aside till date nor it has been stayed by orders of any competent Court, in order dated 21.09.2019 the court below has observed that the amount withheld in bank account of opposite party shall not be released by the bank in favour of him. Wherein the present order trial court has directed that the out of amount withheld in bank account of opposite party an amount of Rs. 3,45,595/- claimed by the revisionist outstanding amount in the year of maintenance will be released informing the applicant. I find no illegality irregularity or perversity in the impugned order passed learned Court below particularly in the circumstances that this Court has already passed an order dated 31.05.2023 to the effect that the application under Section 125 (3) Cr.P.C. moved by the applicant shall be disposed of within a period of three months by court concerned.
16. The revision is devoid of merit and the revision stands dismissed with the above observations.
Order Date :- 19.9.2023 Satish