The High Court disposed of the writ petition challenging execution proceedings of a compromise decree, holding that maintainability objections must be raised before the executing court. The court declined to examine the issue at this stage, granting liberty to the petitioner to pursue the remedy before the court below.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 14404 OF 2024 (GM-FC)
BETWEEN:
MR. ANIL PETER D'CUNHA, S/O LATE MAXIM D'CUNHA, AGED ABOUT 45 YEARS, R/AT D.NO.1-92/2 (PART), MOLAMPAIL HOUSE, NEAR PUMP HOUSE, KULOOR, MANGALURU-575 013 REP. BY HIS GPA HOLDER ASHOK FRANCIS D'CUNHA.
…PETITIONER
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
MRS. PRAFULLA FLAVIA MIRANDA, AGED ABOUT 39 YEARS, W/O. ANIL PETER D'CUNHA, D/O EDWIN MIRANDA, R/AT MIRANDA COMPOUND, MATADAKANI 4TH CROSS, BALOOR, MANGALURU-575 003.
…RESPONDENT
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS IN EXECUTION CASE NO.51/2023 ARISING OUT
NC: 2024:KHC:19914 WP No. 14404 of 2024
OF M.C.NO.61/2014 PENDING ON THE FILE OF THE 1ST ADDL. FAMILY COURT, MANGALURU VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR PRILIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present Writ Petition is filed seeking a prayer to quash the Ex.P.No.51/2023 arising out of M.C.No.61/2014 pending on the file of the I Addl. Family Court, Mangaluru. The parties are referred to as husband and wife for the sake of convenience.
Rs.4,000/- per month to the minor child by 10th of every month starting from April-2014. Thereafter, the respondent filed a petition seeking divorce i.e., M.C.No.460/2019. The Family Court, after considering the case of both the parties, had granted the decree of divorce on 06.03.2023 and directed the husband to pay a sum of Rs.10,00,000/- to the wife as permanent alimony within three months from the date of order. Challenging the same, the petitioner had preferred MFA.No.3978/2023 before this Court. This Court by order dated 29.11.2023 had stayed the execution of the decree, so far it relates to permanent alimony subject to the condition that the petitioner shall deposit an amount of Rs.5,00,000/- before the Executing Court within four weeks from the date of the order.
filed by the respondent/wife is not maintainable, it is for the petitioner to raise such an objection before the Court below. It appears that he has already filed his objections. The petitioner cannot come before this Court and he cannot pursue two remedies before the two Courts as he has filed his objections on the maintainability of the execution petition. It is always open to the petitioner to question the maintainability of the execution petition before the Court below and this Court cannot dwell into the said aspect at this stage.
SD/JUDGE
BN
List No.: 1 Sl No.: 10
1 issue framed by the court
Whether the High Court can entertain a challenge to the maintainability of an execution petition when objections have already been filed before the executing court.
Mr. Anil Peter D'Cunha
Mrs. Prafla Flavia Miranda
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
