Dismissed

Nibedita Samantaray @ Mahanta v. Tanmaya Kumar Mahanta

Orissa HC2 Aug 2023WP(C)/5507/2020

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging the dismissal of an execution petition for arrear pendente lite maintenance, holding that the executing court could not adjudicate maintenance during the dismissed restoration application as no amount remained outstanding.

What did the court decide?

Writ petition dismissed as the execution proceeding was rightly dismissed by the Family Court with no outstanding maintenance due.

Nibedita Samantaray @ Mahanta Vs Tanmaya Kumar Mahanta — Maintenance and Alimony | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Aug-2023 18:32:27

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 5507 OF 2020

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Nibedita Samantaray @ Mahanta …. Petitioner Mr. S. Mohapatra, Advocate

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-versus-

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…. Tanmaya Kumar Mahanta Opp. Party Mr. Bikash Chandra Parija, Advocate

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.08.2023

This matter is taken up through hybrid mode.

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Order dated 22^nd January, 2020 (Annexure-6) passed by learned Judge, Family Court, Bhubaneswar in Civil Execution No.07 of 2019 is under challenge in this writ petition, whereby entertaining an application to recall the order dated 21^st August, 2019 (Annexure-3), it dismissed the execution proceeding itself.

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Mr. Mohapatra, learned counsel for the Petitioner submits that in C.P. No.315 of 2013, a petition under Section 24 of the Hindu Marriage Act, 1955 (For short ‘the Act’) in I.A. No.69 of 2014 was filed claiming pendente lite maintenance. The said application was disposed of on 18^th May, 2015 directing the Opposite Party to pay pendente lite maintenance of Rs.6,000/per month to the Petitioner with effect from the date of interim application, i.e., from 24^th November, 2014. Litigation expenses of Rs.5,000/- was also directed to be paid to the Petitioner-wife. The civil proceeding was dismissed for default on 7th September, 2015. A restoration application filed by the Opposite Party in C.M.C. No.124 of 2015 was also dismissed.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Aug-2023 18:32:27

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Consequent upon dismissal of the civil proceeding, the Opposite Party did not pay the pendente lite maintenance to the wife. Thus, the Petitioner filed Civil Execution No.7 of 2019 claiming arrear pendente lite maintenance of Rs.2,59,000/- from the Opposite Party for the period from 24^th November, 2015 to 19^th February, 2019. Earlier the Petitioner-Wife had also filed Civil Execution No.36 of 2015 for realization of arrear maintenance of Rs.77,000/- from the Opposite Party for the period from 24^th November, 2014 to 24^th November, 2015. The Opposite Party has already paid the said amount.

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The Civil Execution No.7 of 2019 was posted to 21^st August, 2019 on which date learned counsel for the Opposite Party-husband agreed to pay the arrear maintenance. Accordingly, the matter was posted to 4^th September, 2019 for payment of arrear maintenance as claimed. Subsequently, an application was filed to recall the said order on the ground that the learned counsel for the Opposite Party-husband did not agree to pay the arrear maintenance. While recalling the order dated 21^st August, 2019, learned Judge, Family Court vide its order dated 22^nd January, 2020 dismissed the execution petition. Hence, this writ petition has been filed.

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It is submitted by learned counsel for the Petitioner that the wife is also entitled to pendente lite maintenance during pendency of the restoration application. The restoration application was dismissed on 15^th March, 2017. Learned executing Court without considering the same dismissed the execution petition.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Aug-2023 18:32:27

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Mr. Parija, learned counsel for the Opposite Partyhusband submits that the Petitioner is not entitled to pendente lite maintenance under Section 24 of the Act after disposal of C.P. No.315 of 2013. It is his submission that C.P. No.315 of 2013 was dismissed for default on 7^th September, 2015 and till that date the Petitioner has already received the pendente lite maintenance. Thus, learned Judge, Family Court has committed no error in dismissing the execution proceeding.

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Considering the rival contentions of the parties, this Court finds that C.P. No.315 of 2013 was disposed of on 7^th September, 2015 and till that date the Petitioner-Wife has already received pendente lite maintenance under Section 24 of the Act. The said fact also not disputed by Mr. Mohapatra, learned counsel for the Petitioner. It is his submission that even during pendency of the restoration petition, the Petitioner-Wife is entitled to maintenance under Section 24 of the Act.

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The impugned order arises out of an execution case claiming arrear pendente lite maintenance. Learned executing Court cannot go behind the order/decree sought to be executed. An order under Section 24 of the Act can be executed like a decree even after disposal of the main proceeding out of which the said application arose subject to the condition that if any arrear maintenance is outstanding till disposal of such (civil) proceeding.

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In the instant case, no application under Section 24 of the Act was filed in the petition for restoration of the civil proceeding in C.M.C. No.124 of 2015. Learned executing Court cannot adjudicate as to whether the Petitioner-Wife is entitled to

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Aug-2023 18:32:27

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pendente lite maintenance under Section 24 of the Act during pendency of the C.M.C. No.124 of 2015 or not. Since there is no adjudication of the entitlement of the Petitioner-Wife for pendente lite maintenance during pendency of C.M.C. No.124 of 2015 and the Petitioner has already received the arrear pendente lite maintenance till disposal of the C.P. No.315 of 2013, i.e. till 7^th September, 2015, this Court is of the considered opinion that learned Judge, Family Court has committed no error in dismissing the execution proceeding as no due towards pendente lite maintenance to the Petitioner-Wife was outstanding against the Opposite Party.

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Accordingly, the writ petition being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Nibedita Samantaray @ Mahanta v. Tanmaya Kumar Mahanta

Case brief

What is this about?

What did the court decide?

Nibedita Samantaray @ Mahanta v. Tanmaya Kumar Mahanta

Case brief

What is this about?

What did the court decide?

What the court decided

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