Swati Jatia vs Vedant Jatia
2022 Latest Caselaw 11054 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CIVIL APPELLATE JURISDICTION

         FAMILY COURT APPEAL (ST.) NO. 5662 OF 2021

Swati Jatia.                                     ...    Appellant.
      V/s.
Vedant Jatia.                                    ...    Respondent.


Ms.Taubon F. Irani with Ms.Disha Shetty for the Appellant.
Mr.Vikrant Shetty with Ms.Sukhada Dalvi i/b. Ms.Aakansha
Tiwari for the Respondent.


             CORAM :          NITIN JAMDAR AND
                              SHARMILA U. DESHMUKH, JJ.

             DATE :           19 October 2022.

P.C. :
             Heard the learned counsel for the parties.       Appeal is

taken for disposal forthwith in view of the order proposed to be passed.

2. The parties were referred to mediation, however, the mediation was not successful and the Mediator has submitted the report accordingly.

3. The Appellant has challenged the order passed by the Fourth Family Court, Bandra, Mumbai dismissing the Regular Darkhast No.398/2019 filed by the Appellant.

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4. The Appellant and Respondent got married on 14 July 2006. There are two children born from the wedlock. In the month of May 2013, the Appellant and the children were shifted from the matrimonial house into a rented residence. On 10 May 2013, the Respondent filed Petition No.D-44/2013 in the Family Court, Bandra. The Family Court, by order dated 4 September 2015 directed the Respondent to provide to the Appellant and the children a residential accommodation of similar standard and in the same vicinity. Since the Respondent did not comply with the order of 4 September 2015, the Appellant filed contempt petition before the Family Court. The Appellant also filed an application under the provisions of Protection of Children from Domestic Violence Act 2005 and by order dated 11 September 2017, maintenance of Rs.25,000/- each to the appellant and two minor children was granted. The said order was challenged by the Respondent by filing Writ Petition No.13144 of 2017 before this Court and this Court upheld the order of maintenance as well as order of residence. As the Respondent was not complying with the orders, the Appellant filed Contempt Petition No.418 of 2018 before this Court and by order dated 12 December 2018 this Court permitted withdrawal of the petition with liberty to file Execution Proceeding before the Family Court. The Appellant filed execution proceeding No.4 of 2019 before the Family Court and the order dated 27 February 2019 passed in execution proceeding was challenged before this Court skn 3 FCAST-5662.2021.doc

vide Appeal No.1 of 2019 which was allowed by this Court by order dated 23 August 2019. By the said order this Court disposed of the appeal with direction that it was open for the wife to find out and take on lease any flat of her choice for a rental liability of the husband not exceeding Rs.2,25 Lakhs per month (all inclusive) and if she occupies such a property on lease, the husband shall reimburse her to the extent of lease rental inclusive of taxes and maintenance if any of Rs. 2.25 lakhs whichever is lesser, before 5th of every month.

It is for execution of the order of this Court dated 23 August 2019, that the Appellant filed execution proceedings bearing Darkhast No.398 of 2019 on 23 August 2019. This execution proceeding was dismissed by the impugned judgment and order dated 7 January 2021.

5. The learned counsel for the Appellant makes a grievance that the executing court has overstepped its jurisdiction and has entered into merits of the matter when all that the execution court was expected to do is to give effect to the decree which was put to execution. The learned counsel submitted that subsequently the review filed against the order dated 23 August 2019 being Review Petition No.1/2021 is also dismissed by this Court on 15 March 2022. The learned counsel for the Respondent supported the impugned order and submitted that it is correctly passed.

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6. The Appellant had filed execution proceeding in which the Respondent took out an application at Exh.11 stating that the Darkhast be dismissed for non-compliance with the condition put by this Court. The Appellant opposed this application filing reply that once the Darkhast is filed to execute the order, the same should be decided and sought dismissal of the application at Exh.11. We note from the order passed by the Family Court that the Family Court has passed a detailed order referring to the merits of the rival contentions in the original proceeding. There is a reference to the review petition filed. The Respondent has argued that there are certain conditions put by this Court and those conditions are being violated. The Family Court after considering the order dated 23 August 2019 passed by this Court in Family Court Appeal No.140/2019 observed that the Appellant is a wrong door party and it is settled law that wrong door party cannot take benefit of the wrong. The Family Court thereafter further observed that the Appellant- Decree Holder has not come to the Court with clean hands and accordingly proceeded to dismiss the Darkhast.

7. The order passed by the Family Court is outside the scope of the execution proceeding. All that the Executing Court was expected to do is to decide the Darkhast execution proceeding filed by the Appellant as per the order put to execution. If the claim made by the Appellant- Decree Holder was beyond the scope of the decree, it would be granted if it is within the decree, the same would skn 5 FCAST-5662.2021.doc

be granted. The substantive right of the parties cannot be adjudicated at the instance in the execution proceeding. The observation that the Appellant- Decree Holder has not come with clean hands and bonafide intention, demonstrates that the Family Curt considered the execution proceedings as proceeding for adjudication of inter-se rights. Therefor, we are not in agreement with the submission made that the Family Court was in error in dismissing the execution proceeding on an application taken out by the Applicant. The learned counsel for the Appellant states that after the impugned order was passed on 7 January 2021,the review application has been decided and the Appellant will file a fresh Darkhast proceeding accordingly. In light of the above discussion, appeal is allowed.

(SHARMILA U. DESHMUKH, J.) (NITIN JAMDAR, J.)

TRUPTI SADANAND BAMNE Digitally signed by TRUPTI SADANAND BAMNE Date: 2022.10.22 13:49:46 +0530