Disposed

Smt. Madhu Mishra @ Gudia and Another v. Prem Kumar Mishra

Allahabad HC4 Dec 2018A227/8609/2018

Case brief

AI extract

What is this about?

In Art 227 petition, the High Court held that maintenance awarded under Sec 24 of the HMA during a divorce suit is interim and ends upon the suit's termination. The court directed execution via money decree modes but allowed fresh applications for permanent maintenance.

What did the court decide?

Present petition disposed of. Petitioners directed to seek fresh maintenance applications if husband refuses to maintain.

Smt. Madhu Mishra @ Gudia and Another Vs Prem… — Maintenance and Alimony | Allahabad HC (2018)

Reportable.

Court No. - 36

Case :- MATTERS UNDER ARTICLE 227 No. - 8609 of 2018

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Petitioner :- Smt. Madhu Mishra @ Gudia And Another Respondent :- Prem Kumar Mishra Counsel for Petitioner :- Ram Vishal Mishra,Bala Nath Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the parties.

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By means of the present petition, the petitioner is seeking modification of the orders dated 15.12.2017 and 24.3.2018 passed by the Principal Judge, Family Court, Allahabad in Execution Case No. 20 of 2016, which had been filed for execution of the orders/judgment dated 4.3.2013, 10.4.2013 and the order dated 2.5.2017, passed in the proceedings arising out of the Divorce Suit, namely Matrimonial Case No.187 of 2003.

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By means of the orders impugned, the court below has refused to grant maintenance to the petitioner in execution of decree dated 5.7.2013, beyond the date of the decree of the trial court i.e. 3.8.2007 as granted by this Court vide judgment and order dated 4.3.2013, with the dismissal of First Appeal No.247 of 2007 and disposal of First Appeal No.707 of 2008.

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The First Appeal No.247 of 2007 was filed by the respondenthusband seeking to challenge the judgment and decree dated 3.8.2007 in the aforesaid matrimonial petition. The First Appeal No.707 of 2008 was filed by the petitioner-wife against the decree of dismissal of her application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 (in short 'the Act, 1955').

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While dismissing the First Appeal No.247 of 2007, the Division Bench of this Court has refused to interfere in the conclusion drawn by the Family Judge, not to grant the decree for divorce on the ground of cruelty by the respondent-wife (therein).

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However, while allowing the First Appeal No. 707 of 2008, the

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Division Bench had granted the relief of interim maintenance of Rs.5000/- to the appellant-wife and in addition thereto an amount of Rs.3000/- for her daughter and cost of both the proceedings. The relevant observations and directions issued by the Division Bench while disposing of the aforesaid First Appeals are to be quoted hereinunder:-

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"23. In the present case, we do not find that the Family Judge has committed any error in recording the findings that the facts and circumstances as brought out in the evidence, were not sufficient to constitute cruelty as a ground for divorce.

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24. In the appeal against maintenance under Section 24 of the Hindu Marriage Act, the Family Judge committed a gross error in refusing to grant interim maintenance on the ground that the wife had filed written statement after several adjournments. The photographs showing a notice board of a coaching centre by itself could not be a ground, unless the evidence was led to hold that the respondent-wife was earning to maintain herself and her daughter. The husband did not lead sufficient evidence to establish that the wife is earning to maintain herself and her daughter. As a husband, even if he is unemployed, it is his duty to maintain his wife and his daughter. The respondent-wife, however, was not justified in claiming Rs. 15,000/- per month as there was no proof of the employment of her husband in Merchant Navy. In the circumstances, we feel appropriate to grant relief of interim maintenance of Rs.5000/- to the appellant-wife in First Appeal No. 707 of 2008 and in addition an amount of Rs.3000/- for her daughter. This amount will be paid from the date, when she made the application for grant of interim maintenance to her and for her daughter. She will also be entitled to Rs. 25,000/- as cost for defending herself before the Family Court and in the High Court.

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25. The First Appeal No. 247 of 2007 is dismissed.

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26. The First Appeal No. 707 of 2008 is allowed with directions to the respondent-husband to pay Rs. 5000/- per month as maintenance to defendant-wife and Rs. 3000/- as maintenance to his daughter with effect from 8.10.2004, when she filed an application under Section 24 of the Hindu Marriage Act. The office will draw a decree for execution accordingly. "

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Learned counsel for the petitioner has argued that permanent

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alimony of Rs.5,000/- to the appellant-wife and Rs.3,000/- to her daughter has been granted by the First Appellate Court while allowing First Appeal No.707 of 2008 towards maintenance even under Section 125 Cr.P.C. The executing court, however, has illegally held that the amount of maintenance granted by the judgment and order dated 4.3.2013 is only an interim maintenance

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i.e. till the decision in the Matrimonial Case No.187 of 2003 i.e. upto 3.8.2007. The said amount was, therefore, required to be paid to the appellant-wife w.e.f. the date on which she had moved an application under Section 24 of the Act for grant of interim maintenance till termination of the divorce suit.

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The submission is that the maintenance granted to the appellant-wife by the first appellate court vide judgment and order dated 4.3.2013 cannot be treated as interim maintenance rather it was permanent alimony awarded to wife and daughter, as the husband had refused to maintain both. With that view, the maintenance amount of Rs.1000/- awarded to the daughter under Section 125 Cr.P.C. had also been adjusted in the maintenance awarded under Section 24 of the Act, by the first appellate court.

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On a pointed query made by the Court, learned counsel for the petitioner admits that no further application for maintenance under Section 125 Cr.P.C. has further been filed by the appellantwife pleading non-compliance of the judgment and order dated 4.3.2013 i.e. stating therein that despite dismissal of the Matrimonial Petition No.187 of 2003, the husband is not keeping her with himself and has refused to maintain her and their daughter.

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The Execution Case No.20 of 2016 has been filed seeking for realization of the maintenance awarded by this Court vide judgment and order dated 4.3.2013, as noted hereinabove.

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With reference to the order dated 2.5.2017 passed in the Recall Application No.250789 of 2016 filed by husband, submission of learned counsel for the petitioner is that the Division Bench of this Court has further clarified that the maintenance of Rs.5,000/granted to wife and Rs.3,000/- to her daughter are in lieu of the permanent alimony or maintenance under Section 125 Cr.P.C. And as the husband has refused to maintain the petitioners, and further the revisional court has dismissed the revision filed by the petitioners on the ground that the permanent alimony has been granted to them under Section 24 of the Hindu Marriage Act, 1955,

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the petitioners are entitled for the monthly maintenance permanently. The order dated 17.4.2013 (page '49' of the paper book) passed by the revisional court has been placed before the Court to assert the same.

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Thus, it is further vehemently contended that with the clarification vide judgment and order dated 2.5.2017, nothing remained to be interpreted by the Principal Judge, Family Court. The orders impugned are in teeth of the directions of this Court, in First Appeals.

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In alternative, it is submitted that the executing court has committed an error of law in interpreting the order passed by the First Appellate Court dated 4.3.2013 in holding that the maintenance granted to wife and minor daughter would be admissible upto 3.8.2007 i.e. the date of determination in the divorce suit namely Matrimonial Petition No.187 of 2003. The submission is that the order of dismissal of the divorce suit was assailed in the first appeal filed by husband seeking dissolution of marriage on account of cruelty by the respondent-wife. The First Appeal No.707 of 2008 was filed against the order dated 6.12.2005, whereby the application under Section 24 of the Act, 1955 for maintenance and cost of litigation, filed by wife had been rejected. The First Appellate Court has decided both the appeals jointly by the order dated 4.3.2013, granting maintenance to wife and daughter from the date of filing of application under Section 24 of the Act, 1955. The result is that the wife is entitled for maintenance at least uptil the date of conclusion of the proceedings which had been taken up in the first appeal inasmuch as the first appeal is continuation of the original proceedings. Further, since the husband has refused to maintain his wife and daughter and the maintenance awarded by the First Appellate Court has not been paid by him, the petitioners are at least entitled for maintenance amount uptil the conclusion of the execution proceedings. The executing court has, thus, erred in determination of maintenance uptil the date of conclusion of the

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divorce suit, i.e. 3.8.2007.

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To test these submissions of learned counsel for the petitioner, it would be relevant to go through the relevant provisions of Section 24 of the Act, 1955, under which the application was filed by wife. Simultaneously the provisions as contained in Sections 25, and 28 and 28A are also required to be examined. For ready reference they are quoted hereinunder:-

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"24.Maintenance pendente lite and expenses of proceedings.-

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Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable: [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceedings, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

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25.Permanent alimony and maintenance.-

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(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

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(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

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(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

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28.Appeals from decrees and orders-

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(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as

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decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

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(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

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(3) There shall be no appeal under this section on the subject of costs only.

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(4) Every appeal under this section shall be preferred within a⁶⁰ [period of ninety days] from the date of the decree or order.]

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[ 28A Enforcement of decrees and orders. -All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced.]

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Further the provisions of Section 19 of the Family Courts Act, 1984, which provides for appeal, is also to be examined and hence quoted hereinunder:-

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" 19. Appeal (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

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(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 2[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

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PROVIDED that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.]

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(3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.

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2[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate with in its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]

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3[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

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3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

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On a plain reading of Section 24 of the Act, 1955, there

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remains no doubt that the maintenance and cost is awarded in favour of complaining spouse (husband or wife), who is unable to maintain himself or herself, as the case may be during pendency of any proceedings under the Hindu Marriage Act, 1955. The object of Section 24 of the Act, 1955 is to protect the weaker spouse and particularly, if it is wife and to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case for want of money. This is why Courts have always insisted that whenever the application is made under Section 24 of the Act '1955, it must be disposed of before any further steps are taken in the main case. However, life of such order is for a limited period namely during the pendency of the substantive petition under the Act, 1955. The order under Section 24 of the Act, 1955 does not decide any issue between the parties either in the substantive petition or in the application under Section 24 of the Act, 1955 except the question of quantum of maintenance and cost, which may be awarded to the indigent litigating spouse during the proceeding, for the object as aforesaid as may be seen to be reasonable to the Court.

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Further from the wordings of Section 28(2) of the Act, 1955, it is clear that no appeal under the said provision would lie against the order under Section 24 of the Act, 1955. The question is thus whether appeal lies under Section 19 (1) of the Family Courts Act, 1984, against an order passed under Section 24 of the Hindu Marriage Act, 1955.

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The language of Section 19 which provides for statutory remedy of appeal against every judgment or order of Family Court, read with Section 20 of the Family Courts Act, 1984 gives this Act an overriding effect. The Section 19(1), however, states that an appeal shall lie from every judgment or order, not being an interlocutory order. While considering the nature of an interlocutory order and the test used to decide whether an order was interlocutory or not, the Supreme Court in Madhu Limaye v. The State of Maharashtra reported in AIR 1978 SC 47 has observed in paragraph 13 as

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under:-

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" 13 .Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606 "....... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required."

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In para 1607 it is said :

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"In general a judgment or order which determines the principal matter in question is termed "final"."

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In para 1608 at pages 744 and 745 we find the words "An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in thefinal judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."

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In a later decision in V.C. Shukla v . State through C.B.I. reported in AIR 1980 SC 962 it was held in paragraphs 21, 22 and 23 as under:-

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" 21 . …..... To begin with, in order to construe the term 'interlocutory', it has to be construed in contra- distinction to or in contrast with a final order. We are fortified by a passage appearing in The Supreme Court Practice, 1976 (Vol. I p. 853) where it is said that an interlocutory order is to be contrasted with a final order, referring to the decision of Salaman v. Warner. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J, speaking for the Court in the case of Madhu Limaye v. State of Maharashtra, (supra) as follows:

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"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'."

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Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'. Now, let us see how this term has been defined in the Dictionaries and the text books. In Webster's Third International Dictionary (Vol. II, p. 1170) the expression 'interlocutory order' has been defined thus:

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"not final or definitive; made or done during the progress of an action; INTERMEDIATE PROVISIONAL". Stroud's Judicial Dictionary (Fourth Edition, Vol. 3, p. 1410) defines the interlocutory order thus: - " 'Interlocutory order' (Judicature Act

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Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowell and followed in Manchester & Liverpool Bank 1873 (c.66), Section 25(8) was not confined to an order made

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between writ and final judgment, but means an order other than final judgment."

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Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowell and followed in Manchester & Liverpool Bank v. Parkinson. Similarly, the term 'final order' has been defined in volume 2 of the same Dictionary (p. 1037) thus:

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"The judgment of a Divisional Court on an appeal from a county court in an interpleader issue, was a 'final order" within the old R.S., Ord. 58, r. 3 (Hughes v. Little, 18 Q.B.D. 32); so was an order on further consideration (Cummins v. Herron, 4 Ch. D.

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787); unless action was not thereby concluded.. But an order under the old R.S.C., ord. 25, r. 3, dismissing an action on a point of law raised by the pleadings was not 'final" within the old Ord. 58, r. 3, because had the decisions been the other way the action would have proceeded."

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Halsbury's Laws of England (Third Edition, Vol. 22, pp. 743-

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744) describes an interlocutory or final order thus:

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"Interlocutory judgment or order: An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.....

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In general a judgment or order which determines the principal matter in question is termed 'final'."

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At page 743 of the same volume, Blackstone says thus: "Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for................. Four different tests for ascertaining the finality of a judgment or order have been suggested: (1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided? (3) Does the order, as made, determine the dispute? (4) If the order in question is reversed, would the action have to go on."

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Corpus Juris Secundum (Vol. 49 p. 35) defines interlocutory order thus:

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"A final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which reserves or leaves some further question or direction for future determination ........ Generally, however, a final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the

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cause, but reserves or leaves some further question or direction for future determination..... .. The term "interlocutory judgment" is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states."

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(Emphasis ours) Similarly, Volume 60 of the same series at page 7 seeks to draw a: distinction between an interlocutory and a final order thus:

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"The word "interlocutory", as applied to rulings and orders by the trial court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial court from the inception of an action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause deciding some point or matter essential to the progress of the suit and collateral to the issues formed by the pleadings and not a final decision or judgment on the matter in issue .. An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment."

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22. …......The essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issue sought but is not a final decision or judgment on the matter under issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment..... 23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above.

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The ratio of V.C. Shukla (supra) has been approved in a later decision of the Apex Court in Usmanbhai Dawoodbhai Memon & Ors. v. State of Gujarat reported in AIR 1988 SC 922. Relevant observation at Page '933' are quoted as under:-

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…...In V.C. Shukla v. State through C.B.I., [1980] Suppl. SCC 92, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contra- distinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well

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as to criminal cases. In criminal proceedings, the word 'judgment' is intended to indicate the final order in trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time.....”

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Having gone through the decisions of the Apex Court, it can be concluded that the test for determining the finality of an order is whether the said judgment and order finally disposed of the rights of the parties. The final order is in contradistinction to an interlocutory order which merely decides some point or matter essential to the progress of the suit and collateral issues sought, but not a final decision or judgment in the matter in issue.

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As indicated earlier, an order under Section 24 of the Act, 1955 does not decide in any manner rights and liabilities of the parties raised in matrimonial petition. The lis in matrimonial petition continues even after disposal of the application under Section 24 of the Act, 1955 as the object of the provision is to enable the indigent, weaker spouse to resist the action of others and to maintain himself or herself, as the case may be. The maintenance awarded under Section 24 of the Act, 1955, therefore, can only be said to be an interim maintenance, which would be payable during the continuance of the substantive proceedings under the Act, 1955. However, with the termination of the said proceedings, the order under Section 24 of Act, 1955 will loose its efficacy. That means the said order cannot inure after termination of the petition, as in the instant case, the divorce petition under Section 13(1) of the Act, 1955.

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Further, that no appeal shall lie against an interlocutory order under Section 19(1) of the Family Courts Act, 1984, the appeal filed against the order under section 24 of the Act, 1955 cannot be said to be in continuation of the original proceedings.

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The view taken by the Court is substantiated from the

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judgment of Full Bench of the High Court of Patna in Neelam Kumar Sinha v. Shree Prashant Kumar reported in AIR 2010 Patna 184.

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However, in case the order passed in substantive petition under the Act, 1955 such as divorce suit is taken up further in appeal, it is always open for the contesting spouse to file an application under Section 24 of the Act, 1955 before the appellate court to seek maintenance and cost of litigation during the pendency of the appeal, upon which, the First Appellate Court would be within its jurisdiction to grant maintenance during the pendency of the appeal and to award the cost of litigation, which may seem reasonable to it.

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In the instant case, the divorce suit filed by husband was dismissed on 3.8.2007. During the pendency of the divorce suit, before the Family Court, the wife filed an application under Section 24 of the Act, 1955 which was dismissed vide judgment and order dated 6.12.2005. The said order was challenged in a separate appeal filed by wife which was decided along with the first appeal filed against the order of dismissal of the divorce suit.

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The First Appellate Court has granted monthly maintenance to wife and daughter w.e.f. the date of filing of the application under Section 24 of the Act, 1955, in addition to the cost for defending herself before the Family Court and in the High Court. Admittedly, no separate application under Section 24 of the Act, 1955 was filed by the wife seeking interim maintenance during the pendency of the first appeal against the final order passed in the divorce suit. The result would be that monthly maintenance awarded to wife by the First Appellate Court in appeal filed against the order of dismissal of her application under Section 24 of the Act, 1955, can only be read as interim maintenance awarded during the subsistence of the divorce suit i.e. till disposal of the matrimonial petition No.187 of 2003 filed by the husband seeking dissolution of marriage on the ground of cruelty by the wife. The said suit was dismissed on

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3.8.2007. With the termination of the proceedings of the substantive petition, the order of maintenance goes. Further the cost of litigation has already been awarded by the Court.

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The contention of learned counsel for the petitioners that the interim maintenance awarded by the First Appellate Court would be payable uptil the date of conclusion of execution proceedings, therefore, cannot be accepted. However, the order passed under Section 24 of the Act, 1955 is executable as a money decree. The executing court is required to proceed to execute the same as the money decree by adopting the mode of execution provided under Order 21 Rule 30 of the Code of Civil Procedure, 1908.

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For any grievances with regard to the computation, it is open for the petitioners to file their own computation before the Executing Court, before whom the proceedings are still pending.

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Further, it is also open for the petitioners to move the competent court seeking maintenance on the plea that they are not being maintained by the respondent (husband of petitioner no.1 and father of petitioner no.2) and he is not keeping them with himself. For any such application moved by wife, the observation made in any of the orders passed by the Family Court or the High Court previously and hereinabove will not come in their way.

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Subject to the above, the present petition is disposed of.

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(Sunita Agarwal, J.)

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Order Date :- 4.12.2018 Jyotsana

Smt. Madhu Mishra @ Gudia and Another v. Prem Kumar Mishra

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Smt. Madhu Mishra @ Gudia and Another v. Prem Kumar Mishra

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