Smt Sudha Devi And Another vs Rampal
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Allahabad High Court

Smt Sudha Devi And Another vs Rampal on 19 May, 2025

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:83759
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2107 of 2024
 

 
Petitioner :- Smt Sudha Devi And Another
 
Respondent :- Rampal
 
Counsel for Petitioner :- Kumdax Kumar Dwivedi,Pradeep Kumar Tripathi
 
Counsel for Respondent :- Ram Raksha Tiwari
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. List has been revised. Counsel for the petitioner is present. No one is present on behalf of respondent despite the name of one Sri Ram Raksha Tiwari, Advocate, has been shown in the cause list as counsel for the respondent.

2. This writ petition has filed for setting aside the judgment and order dated 25.10.2023 passed in Civil Revision No.18 of 2023 by Additional District & Sessions Judge, Banda so far as it relates to pension of the respondent.

3. The petitioner No.1 before this Court is the widow of late Sri Akhilesh Kumar Mishra, who was the son of sole respondent. Petitioner No.2 is unmarried daughter of late Sri Akhilesh Kumar Mishra. Unfortunately, Sri Akhilesh Kumar Mishra had died in the year 1999 leaving behind both the petitioners.

4. An application for maintenance under Section 19 of Hindu Adoption and Maintenance Act, 1956 was filed, which was allowed against which an appeal was preferred by the respondent, which was dismissed.

5. An execution proceedings were initiated by the petitioners in which objections under Section 47 C.P.C. was moved, which was rejected, against which civil revision was preferred by the respondent, which was partly allowed to the extent that pension of the respondent was not to be included in the order of execution. It is against this order that petitioners have filed the present writ petition.

6. This Court on 13.03.2024, after hearing respective counsel for the parties, passed the order and required the respondent to deposit Rs.3 lakhs before the Executing Court. The order passed on 13.03.2024 is extracted hereas under :

"1. Heard learned counsel for the parties and perused the record.

2. This writ petition has been filed seeking following relief :-

"i) Issue an order or direction to set aside the judgment and order dated 25.10.2023 passed in Civil Revision No. 18 of 2023 (Rampal Vs. Smt. Sudha Devi and Another) by learned Additional District and Session Judge, Banda, District - Banda so far it relates to pension of the respondent.

ii) Issue an order or direction directing the respondent to pay arrear of maintenance as well as monthly maintenance to the petitioners so that petitioners may survive gracefully."

3. Brief facts of the case are that an application being Case No.293 of 2007 was filed by the petitioner against one Rampal (father-in-law of the applicant) under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 which was decreed on 19.3.2012, awarding maintenance of Rs.3,000/- per month to the applicant and Rs.2,000/- per month for daughter of applicant. Since the order dated 19.3.2012 passed in proceedings u/s 12 of the Hindu Adoptions and Maintenance Act, 1956 was not complied with, an application for execution and the order was filed by the petitioners which was registered as Execution Case No.31 of 2014. During the pendency of Case No.3/2014 an application (paper No.71Ga), under Section 47 CPC was filed by opposite party which was rejected by the Executing Court by its order dated 26.4.2023. Against the order dated 26.4.2023, a revision No.18 of 2023 was filed which has been partly allowed and order passed by the Executing Court was modified to the extent that the pension received by opposite party will not attached in execution. Hence, the present petition.

4. Contention of learned counsel for the petitioner is that petitioner was married to Akhilesh s/o Rampal - respondent and her husband died on 30.12.1999. Petitioner was illiterate and was not maintained by the opposite party though husband of the petitioner had agricultural property in which the petitioner has share after the death of her husband. It has been further contended by learned counsel for the petitioner that order of maintenance granted by the Court below was challenged in appeal by the respondent, however, the appeal has also been dismissed. After the dismissal of appeal, respondent has sold the agricultural property to his another son and grand sons in order to obstruct the execution of the order passed by the Court in proceedings under Section 19 of the Hindu Adoptions and Maintenance Act, 1956.

It has been further contended by learned counsel for the petitioner that Section 60(1)(g) CPC does not bar the attachment of pension. In this regard petitioner has relied upon the following judgments which are as follows :-

"i). Captain Ramesh Chander Kushal vs. Mrs. Veena Kaushal and others; AIR 1978 SC 1807.

ii). Chaturbhuj Vs. Sita Bai; 2008 (2) SCC 316.

iii). Badshah Vs. Urmila Badshah Godse and Another; 2014 (1) SCC 188.

iv) Abdul Sathar Vs. Pathimuthu; 2020 (2) KLJ 480,

v) P. Amutha Vs. Gunsekaran; 2023 (1) HLR 456.

vi) Bhagwant Vs. Radhika; 2019 (3) BOM Cr (Cri) 600"

5. Per contra, learned counsel appearing for the respondents has submitted that order passed by the Revisional Court is perfectly legal and, therefore, no interference is required.

6. Matte requires consideration.

7. Learned counsel for the respondents may file counter affidavit within three weeks. Rejoinder affidavit, if any, be filed within a week thereafter.

8. Learned counsel for the petitioner prays for interim relief that the order impugned may be stayed. It has also been contended by learned counsel for the petitioner that total outstanding amount is Rs.7,15,000/-, out of which, Rs.95,000/- has been paid by the respondent and now remaining amount is more than Rs. 6,00,000/-, which is to be paid to the petitioner.

9. At this stage on being asked by the Court, learned counsel for the respondents, on instructions, submitted that respondent is ready to deposit Rs.3,00,000/- before Executing Court towards arrears of maintenance within a period of four weeks from today. Learned counsel further prayed that order impugned may not be stayed which will, otherwise, result into stopping the pension of petitioner.

10. List this matter after four weeks.

11, In the meantime, respondent may deposit Rs.3,00,000/- before the Executing Court which shall be released and paid to the petitioner without furnishing any security.

12. It is made clear in case money is not deposited by the opposite party within time framed, as granted by this order, the Court will be constrained to vacate the order passed by the Revisional Court."

7. The matter was again taken up on 30.07.2024 and the Court vacated the protection granted in civil revision No.18 of 2023 as the amount of Rs.3 lakhs was not deposited by the respondent before the Execution Court and following order was passed:

"1. Case was taken up under the category of mention cases.

2. Sri Pradeep Kumar Tripathi, learned counsel for petitioners is present whereas Sri Ram Raksha Tiwari, learned counsel for respondent is not present.

3. Sri Pradeep Kumar Tripathi, learned counsel for petitioners has produced information slip dated 30.07.2024 duly received by Sri Ram Raksha Tiwari, learned counsel for respondent, which is taken on record.

4. Learned counsel for petitioners submitted that this Court has passed conditional order dated 13.03.2024 in which, respondent was directed to deposit Rs. 3 lakh before the Execution Court and in case of deposit of money, which shall be released in favour of petitioners. Further, Court has made it clear that in case money is not deposited by the respondent within the time framed given by the Court, this Court will vacate the impugned order dated 25.10.2023 granted by the Revisional Court. It is next submitted that order of this Court dated 13.03.2024 has not been complied with as respondent had not deposited Rs. 3 lakh. Petitioner has also filed affidavit dated 09.07.2024 to this effect.

5. I have considered the submissions made by counsel for petitioners and perused the order dated 13.03.2024. Relevant paragraph no. 11 & 12 of order of this Court dated 13.03.2024 are being quoted below:-

"11, In the meantime, respondent may deposit Rs. 3,00,000/- before the Executing Court which shall be released and paid to the petitioner without furnishing any security.

12. It is made clear in case money is not deposited by the opposite party within time framed, as granted by this order, the Court will be constrained to vacate the order passed by the Revisional Court."

6. I have also perused the supplementary affidavit dated 09.07.2024. There is specific averment in the affidavit that respondent has not deposited the amount. Paragraph no. 4 of the supplementary affidavit is being quoted below:-

"4. That in compliance of said order dated 13.03.2024, the opposite party has not deposited the amount till today and deliberately flouted the order passed by this Hon'ble Court. Therefore, in view of paragraph 12 of order dated 13.03.2024, the impugned revisional order dated 25.10.2023 is liable to be vacated, otherwise the petitioners shall suffer irreparable loss and injury."

7. In light of such facts of the case, order dated 25.10.2023 passed by Revisional Court in Civil Revision No. 18 of 2023, by which protection granted to the respondent with regard to pension is stand vacated.

8. Execution Court may proceed against the respondent in accordance with law.

9. List this case on 27.08.2024."

8. Today, when the matter was taken up, Sri Ram Raksha Tiwari, learned counsel for the respondent is not present even in the revised call.

9. I have heard counsel for the petitioner and perused the material on record.

10. I find that the order dated 25.10.2023 is not sustainable in the eyes of law and the same is hereby set aside.

11. Recently, the Apex Court, on 06.03.2025, in Periyammal vs. V. Rajamani, 2025 SCC OnLine SC 507 had held that the execution proceedings should be concluded expeditiously considering the earlier judgment of the Apex Court rendered in case of Rahul S. Shah v. Jindendra Kumar Gandhi reported in (2021) 6 SCC 418.

12. In view of the said fact, the Executing Court is hereby directed to proceed with the execution proceedings and decide the same strictly in accordance with law within a period of six months from the date of presentation of certified copy of this order.

13. Writ petition stands allowed.

Order Date :- 19.5.2025

Kushal