Calcutta High Court (Appellete Side)
Sri Harichand Biswas vs Smt. Supriya Biswas on 14 August, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
1 4 14.08.2018
C.R.R. 686 of 2018 SB Ct. No. 42 Sri Harichand Biswas Vs. Smt. Supriya Biswas Ms. Rita Patra .... For the Petitioner The instant revision has been preferred by the petitioner / husband under sections 482 read with Section 401 of the Code of Criminal Procedure praying for quashing of the order dated 20.09.2017 and February 19, 2018 passed by the learned Judicial Magistrate, 1st Court, Sealdah in M. Execution Case No. 149/2017.
It is submitted by the learned Advocate appearing on behalf of the Petitioner that Opposite Party is getting maintenance in a proceeding under Section 13(1)(ia) of the Hindu Marriage Act and she is not entitled to get any maintenance in a proceeding under Section 125 of Code of Criminal Procedure. She further submits that in the proceeding under Section 125 of Code of Criminal Procedure due to his medical treatment petitioner/husband could not appear and accordingly, the application under Section 125 of Code of Criminal Procedure was allowed ex parte granting maintenance to the Opposite party/wife. She further submits that Opposite Party/wife has now put the order in execution and distress warrant has been issued against the petitioner. She, therefore, prays for staying of operation of the impugned order so that this petitioner can participate in the execution case.
It appears from the document annexed in the instant revision that application under Section 125 of Code of Criminal Procedure was disposed of on April 10, 2013. If the submission of the learned Advocate for the petitioner is accepted that this petitioner due to his illness could not appear in the case to contest then it cannot be said that this petitioner had no knowledge about the pendency of the maintenance application under Section 125 of the Code of Criminal 2 Procedure. Apparently, the execution case was filed in the year 2017 and the impugned order dated September 20, 2017 shows that due to refusal of the petitioner to receive the notice, court issued distress warrant against him. In spite of knowledge of the pendency of the execution case and the said order, petitioner did not choose to prefer any revision and waited till the passing of another order on February 19, 2018 by which Officer-in-Charge, Bagda P.S. was directed to show cause for non execution of distress warrant. How the petitioner is affected by the impugned order dated February 19, 2018 is not clear, as by that order the Officer-in-Charge Bagda P.S. was directed to show cause.
Furthermore, this petitioner could have appeared before the Court below and agitated his grievance there but instead of doing so, he has come before this Court praying for stay of operation of the impugned order.
Having considered the submission of the learned Advocate for the petitioner and considering the entire facts and circumstances, I find no merit in the instant revision.
Accordingly, the instant revision is dismissed. Liberty is granted to the petitioner to agitate his grievance before the learned Court, if so desires.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance with requisite formalities.
(Md. Mumtaz Khan, J.)