Petitioners challenged impounding of share in ancestral property by State due to non-compliance of maintenance order under Section 125 CrPC. Court noted pending execution proceedings and declined to interfere, stating maintainability open to parties under existing law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 40
Case :- WRIT - C No. - 34989 of 2022
Petitioner :- Aksh And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Tejasvi Misra,Vagish Kumar Misra Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Vivek Kumar Singh,J.
Heard Shri Tejasvi Misra, learned counsel for the petitioner and Ms. Uttara Bahuguna, learned Addl. Chief Standing Counsel.
Present writ petition has been preferred for a direction to respondent no.2 to refrain from impounding the share of Sri Rajesh in ancestral property until the shares of petitioners are divided and for a direction to respondents to decide the representation of the petitioners dated 5.9.2022 within stipulated period.
The petitioners claims to be brother of Rajesh Khatik against whom his wife namely Reeta Devi has moved an application for maintenance under Section 125 CrPC being Case No.970 of 2015 (Reeta Devi v. Rajesh Khatik), which was decided on 16.10.2016 by which Rajesh Khatik was directed to pay a sum of Rs.3000/- per month to his wife. As Rajesh Khatik was missing, the said order could not be complied with. In such situation, the respondent no.3 (Reeta Devi) has moved execution application under Section 128 CrPC being Suit No.284 of 2018. In non-compliance of the order passed under Section 128 CrPC, a communication as well as reminder dated 20.5.2022 and 11.7.2022 respectively were issued to respondent no.2 for impounding the share of petitioners' brother namely Rajesh Khatik against whom liability of Rs.2,20,000/- has been fastened. The execution proceeding is stated to be still pending consideration. In this backdrop, learned counsel for the petitioners submits that as on date the petitioners are living in undivided family and the shares between the petitioners (including the said Rajesh Khatik) has not yet been partitioned and, as such, without proper formal partition, the impounding of share of Rajesh Khatik is not justified.
We have occasion to consider the grievance of the petitioners and find that admittedly the order under Section 125 CrPC for interim maintenance is already in existence, which is not complied with till date. Even the execution proceeding under Section 128 CrPC is also pending consideration. Therefore, we are not inclined to entertain the writ petition. However, it is always open to the petitioners to invoke the remedy as available in law.
The writ petition stands disposed of accordingly.
Order Date :- 7.2.2023
SP/
Digitally signed by :- SURYA PRAKASH High Court of Judicature at Allahabad
3 issues framed by the court
Whether a writ petition can entertain plea for non-impounding of share in ancestral property pending partition when maintenance order under Section 125 CrPC is unimplemented.
Whether respondents are directed to decide representation of petitioners within stipulated period.
Whether maintainability of writ petition to direct government to refrain from impounding share of non-compliant individual in undivided family is established.
2 provisions across 1 enactments
Aksh And Another
State Of U.P.
Reeta Devi
Rajesh Khatik
Mahesh Chandra Tripathi
Vivek Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
