Petitioner challenged a Family Court recovery warrant via an Article 227 writ petition citing pending first appeal. Court held the plea is for the pending appeal, dismissed the writ, and directed petitioner to file proper application in the first appeal.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8409 of 2018
Petitioner :- Dinesh Kumar Sarasvat Respondent :- Principal Judge Family Court Mathura And Another Counsel for Petitioner :- Kalyan Sundram Srivastava,Som Sundaram Shriwastav
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner.
The present petition is directed against the recovery warrant dated 6.8.2018 passed by the Principal Judge, Family Court, Mathura in Execution Case No. 07 of 2018 (Shikha Sarasvat vs. Dinesh Kumar Sarasvat) which arose out of an order dated 5.2.2015, an interim order passed on application 10-Ga in Matrimonial Petition No. 720 of 2013. The order dated 5.2.2015 has been challenged in First Appeal (Defective) No. 124 of 2015 (Dinesh Kumar Saraswat vs. Smt. Shikha Saraswat) (being regular no. 759 of 2017), which according to the petitioner is pending before this Court.
The submission of learned counsel for the petitioner is that since the entire record of the Court below has been summoned by the First Appellate Court, it was not open for it to entertain the execution application.
The said plea taken by the petitioner can very well be examined in the pending First appeal. No question arises to file this petition under Article 227 of the Constitution of India.
The present petition is, accordingly, dismissed .
However, it is open for the petitioner to move a proper application in the pending First appeal.
Order Date :- 26.11.2018 Brijesh
Dinesh Kumar Sarasvat
Principal Judge Family Court Mathura
Another
Sunita Agarwal
As recorded by the court registry
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