Orissa High Court
Somanath Jena vs Smt. Sabitri Jena And Anr. on 23 October, 1986
Equivalent citations: AIR1987ORI251, AIR 1987 ORISSA 251, (1987) 1 DMC 92, (1987) 1 HINDULR 128, (1987) 1 CURCC 775
JUDGMENT S.C. Mohapatra, J.
1. Husband in a suit for maintenance by the wife is the petitioner in the civil revision and the appellant in the Miscellaneous Appeal (hereinafter referred to as 'the petitioner'). As the parties are the same and both the matters arise out of the same suit, I heard them together and dispose of the same in this common judgment.
2. During the pendency of the suit for maintenance, the wife (plaintiff) filed an application for interim maintenance as well as for litigation expenses purporting to be one under Section 24 of the Hindu Marriage Act. Trial Court considered the application and granted Rs. 120/- per month towards maintenance and Rs. 30/- per month towards litigation expenses. For recovery of the said amount an execution case was filed by the wife. To facilitate recovery of the amount in the execution proceeding, she filed an application in the suit to appoint a receiver in respect of salary of the defendant-petitioner. The same having been allowed the Misc. Appeal has been filed.
3. The learned counsel for the petitioner submitted that Section 24 of the Hindu Marriage Act is not applicable to a suit for maintenance under the Hindu Adoptions and Maintenance Act by the wife for maintenance. The contention is well-founded in law.
However, the same would be of no assistance to the petitioner. It has been now well-settled in a decision reported in (1985) 1 Orissa LR 486: (AIR 1985 Orissa 284) Subhash Chandra Biswai v. Maluni Biswalo), that in a suit for maintenance interim maintenance can be granted in exercise of inherent power. Wrong nomenclature by mentioning the petition to be one under Section 24 of the Hindu Marriage Act would not defeat the relief to the wife and Court is not deprived of the exercise of inherent power under Section 151.C.P.C.
4. There is no dispute that the plaintiff is the wife of the defendant. Accordingly, as has been held in the decision referred to above, she can be granted maintenance in exercise of the inherent power. A sum of Rs. 120/- per month is not on the higher side justifying interference. Therefore, I am not inclined to interfere with the exercise of inherent power granting maintenance of Rs. 120/- per month during pendency of the suit.
5. The question of granting litigation expenses of Rs. 30/- per month would stand on a completely different footing. Normally inherent power is not to be exercised to grant litigation expenses. Section 24 of the Hindu Marriage Act is not attracted. Therefore, that part of the order granting Rs. 30/- per month towards litigation expenses is liable to be vacated. Therefore, the impugned order is bad to that effect and is to be modified to that extent.
6. The Executing Court has ample power for recovery of the amount from the salary of the petitioner. Therefore, the question of appointment of a receiver in respect of the salary to the petitioner ought to have been considered very carefully. During the pendency of the Civil Revision and the Misc. Appeal the defendant has complied with the order of this Court by remitting Rs. 100/- to the plaintiff deducting therefrom the cost of money order charges. Therefore, interest of justice requires that in the peculiar circumstances, the petitioner is granted some time to pay the balance amount. In case the entire amount of Rs. 120/- per month granted by the trial Court is deposited by the petitioner by 31st January, 1987 adjusting the amount already received by the plaintiff, the order appointing the receiver shall stand vacated. Failure to deposit the amount within the stipulated period shall have the effect of confirmation of the order appointing receiver.
7. It is submitted that a direction should be given to dispose of the suit early. This is a suit for maintenance by the wife and requires prompt disposal, trial Court shall do well in disposing of the suit before the end of June, 1987.
8. In the result, the Civil Revision and the Misc. Appeal are allowed in part. There shall be no order for costs.