Mrs. Meghna Sanjeev Ranade vs Mr. Sanjeev Vyenkatesh Ranade And ...
2023 Latest Caselaw 2077 Bom

                                                              FCA 7 of 2016.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                 FAMILY COURT APPEAL No. 7 OF 2016
                   Meghna Sanjeev Ranade                  )
VAISHALI
ANIL               Age: 54, Occupation Nil,               )
TIKAM
                   Resident of 10/3A/1, Near Kailas       )
Digitally signed
by VAISHALI
                   Jeevan Company, Dhayari,               )
ANIL TIKAM
Date:              Pune - 411 041                         )...Appellant
2023.03.02
10:53:48 +0530
                           Vs.
                   1.Sanjeev Vyankatesh Ranade,           )
                   Age 57 Years, Occupation Business, )
                   Resident of 17/A/6, Vijay Bungalow,    )
                   Near Ashwamedh Hall, Karve Road, )
                   Erandawane, Pune - 411 004             )
                   2. Indian Overseas Bank                )
                   Erstwhile, Shree Suvarna Sahakari      )
                   Bank Ltd.,                             )
                   Resident of Deccan Gymkhana            )
                   Branch, Pune                           )...Respondents



                   Mr. Pramod R. Arjunwadkar a/w. Mrs. Prabha U. Badadare a/w.
                   Mr.Omkar Nagvekar, Advocates for the Appellant
                   Mr. Hitesh P. Vyas, Advocate for the Respondent No.1
                   Mr. Tejesh Dande a/w. Mr. Bharat Gadhavi a/w. Mr. Vishal Navale
                   a/w. Mr. Vikrant Khare a/w. Mr. Chinmay Deshpande i/by Mr.Tejes
                   Dande And Associates, Advocates for Respondent No.2-Bank



                   Tikam                                                     page 1 of 20
                                           FCA 7 of 2016.doc


                      CORAM:- R.D. DHANUKA &
                             M.M. SATHAYE, JJ.

RESERVED ON 17TH FEBRUARY, 2023 PRONOUNCED ON 2ND MARCH, 2023

JUDGMENT - (PER R.D. DHANUKA, J.)

1. Admit.

2. Mr. Vyas waives service for Respondent No.1. Mr.

Dande waives service for Respondent No.2. By consent of

parties, matter is taken up for final hearing.

3. The Appellant (Decree-holder) has filed this Appeal

under Section 19 of the Family Court Act r/w. Section 96 and

Order 41 of the Code of Civil Procedure, 1908 whereby

impugning the judgment and order dated 24 th July, 2015

passed by the Learned Family Court No.5 on Application

below Exhibit '3' filed by the Appellant for executing the order

passed by this Court in Family Court Appeal No. 85 of 2003.

4. Some of the relevant facts for the purpose of

deciding this Appeal are as under.

5. On 8th February, 1993, the Appellant married with

Respondent No.1 according to the religious rituals of Hindu

Law. On 16th October, 1998, the Appellant initiated the

petition for restitution of conjugal rights against Respondent

No.1 in the Family Court, Pune bearing PA No. 813/1998. In

Tikam page 2 of 20 FCA 7 of 2016.doc

the said proceedings, Respondent No.1-Husband filed counter

claim, inter alia, praying for divorce against the Appellant. On

3rd August, 1999, the Appellant filed application for

maintenance in the PA No. 813/1998. The Family Court by an

order dated 3rd August, 1999, awarded maintenance of

Rs.1,000/- p.m. in favour of the Appellant. On 6 th October,

1999 the Appellant challenged the said order of maintenance

passed by the Family Court by filing Writ Petition No.

5672/1999 before this Court. This Court by an order dated 9 th

December, 1999 enhanced interim maintenance from

Rs.1,000/- granted by the Family Court to Rs.10,000/- per

month with effect from October, 1999 till disposal of PA NO.

813/1998.

6. On 26th November, 2000, the Family Court passed

the judgment and decree and allowed the petition for

restitution of conjugal rights filed by the Appellant and

rejected the counter claim of Respondent No.1 for divorce. On

29th May, 2001, the Appellant filed a Petition No. C-55 / 2001

before the Family Court, Pune, inter alia, praying for lump

sum permanent maintenance of Rs.10,00,000/- and for

purchase of house Rs.15,00,000/-, aggregating to

Tikam page 3 of 20 FCA 7 of 2016.doc

Rs.25,00,000/-. On 13 th December, 2002, the Family Court

passed an order in the Petition No. C-55/2001 and awarded

maintenance of Rs.7,000/- p.m.

7. In the year 2003, the Appellant challenged the said

order before this Court by preferring Family Court Appeal

No. 85 of 2003. Respondent No.1 did not challenge the said

order dated 13th December, 2002 passed by the Family Court

in Petition No. C-55/2001 awarding maintenance of Rs.7,000/-

in favour of the Appellant.

8. On 1st February, 2003 since Respondent No.1

neglected to pay the maintenance amount as per order of

this Court, the Appellant preferred Execution Application

bearing Darkhast No. 23/2003 for execution of the judgment

and decree and order dated 13 th December, 2002 passed by

this Court. In the said proceedings, the property of

Respondent No.1 was attached for the amount of the

maintenance due till then. The Appellant also preferred

execution proceeding for execution of the Judgment and

decree and order dated 13th December, 2002 passed by the

Family Court granting maintenance at the rate of Rs.7,000/-

p.m.

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                                        FCA 7 of 2016.doc

9. On 7th November, 2003, Respondent No.2 Bank

intervened in the said execution proceedings and objected for

attachment of the said property belonging to Respondent

No.1 and claimed exclusive rights on the said property. On

7th November, 2003, the Family Court, Pune rejected the

claim of Respondent No.2 Bank and held that the dues of the

Appellant has got priority over claim of Respondent No.2

Bank. Respondent No.2 did not challenge the said order

dated 7th November, 2003 passed by the Family Court.

10. On 25th November, 2003, the Appellant preferred

Civil Application No. 8/2004 in Family Court Appeal No.

55/2003 and prayed that charge of maintenance be placed on

the property belonging to Respondent No.1, known as Aram

Fast Food and Snack Bar at Pune. On 8 th July, 2004,

application for creation of the charge on the building known

as Aram Fast Food and Snack Bar at Pune came to be allowed

by this Court. The Appellant preferred Civil Application No.

184/2004 in Family Court Appeal No.85/2003 and prayed for

an order and direction to retain the amount of Rs.25,00,000/-

from the sale proceeds of the property for the satisfaction of

the claim of the Appellant and for an order and direction to

Tikam page 5 of 20 FCA 7 of 2016.doc

disburse the balance amount as per the priorities decided by

the Family Court by its order dated 7th November, 2003.

11. On 18th October, 2004, this Court passed an order

of auction of the property of Respondent No.1 and prohibited

disbursement of auction proceeds indicating that this Court

had granted the prayer of not disbursing the amount of

Rs.25,00,000/- . On 21 st August, 2007, Respondent No.2 Bank

preferred intervention application before this Court bearing

Civil Application No. 16 of 2006 in CA No. 184/200. This

Court passed an order directing Respondent No.2 Bank to

auction the said property and deposit the sale proceeds in

the Court.

12. On 15th January, 2008, this Court rejected the

application filed by Respondent No.2 Bank and observed that

if the Bank has any dues to be recovered from the

Respondent, their remedy is to proceed in the appropriate

court of law. These proceedings cannot be remedy for the

Bank.

13. On 6th May, 2008, the Special Recovery Officer of

Respondent No.2 Bank auctioned the property of Respondent

No.2 and kept the said amount with Respondent No.2 Bank

Tikam page 6 of 20 FCA 7 of 2016.doc

instead of depositing the said amount in this Court. It is the

case of the Appellant that the said amount could not have

been retained by the Bank itself and ought to have been

deposited in this Court.

14. In the meanwhile, in the year 2006, the Appellant

filed application in the Executive Proceeding No. 55/2006 to

put Respondent No.1 in civil prison for non-payment of

maintenance amount. This Court passed that order on 25 th

April, 2007 in Civil Application No. 87/2007 in Family Court

Appeal No. 85/2003 and directed that the Respondent No.1 to

be put in civil prison for non-payment of maintenance amount.

The Respondent No.1 challenged the said order by preferring

Special Leave Petition, which was converted into Civil Appeal

No. 6914/2007 before the Supreme Court. On 1 st December,

2008, the Supreme Court passed an order dated 1 st

December,2008 r/w. order dated 24 th July, 2009 thereby

setting aside the order of civil prison passed by this Court

and observed that the Family Court will see that the entire

outstanding amount of maintenance is paid to the wife out of

the sale proceeds.

15. Respondent No.2 filed Review Application before

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the Supreme Court bearing D-17208/2011 contending that

the impugned order is passed without notice to Respondent

No.2 Bank.

16. On 21st July, 2011, this Court allowed the Family

Court Appeal No. 85/2003 filed by the Appellant challenging

the refusal of lump sum maintenance and granting meager

maintenance of Rs.7,000/- p.m. and upheld the right to claim

maintenance by Appellant and allowed the appeal granting

lump sum maintenance of Rs.10,00,000/- and Rs.15,00,000/-

together with interest at the rate of 18%.

17. Since Respondent No.1 failed and neglected to pay

the maintenance amount in compliance with the judgment and

order dated 21st July, 2011 in Family Court Appeal No.

85/2003 passed by this Court, the Appellant preferred

Executing Proceeding bearing Regular Darkhast No. 195/2011

for execution of the judgment and order dated 21 st July, 2011.

The Appellant claimed a sum of Rs.56,55,000/- against the

Respondent No.1 and Respondent No.2 Bank along with

interest.

18. The Appellant preferred application at Exhibit 3 in

Regular Darkhast No. 195/2011 and contended that

Tikam page 8 of 20 FCA 7 of 2016.doc

Respondent No.1 and Respondent No.2 Bank, are responsible

for the satisfaction of the execution proceedings and further

pointed out that Respondent No.2 Bank as per order passed

by the Supreme Court, was under obligation to pay the said

decreetal amount and as Respondent No.2 Bank had collected

Rs.1,50,00,000/- out of sale proceeds of the property of

Respondent No.1, Respondent No.2 Bank had to deposit the

decreetal amount in the Family Court at Pune for the purpose

of disbursement to the Appellant.

19. On 24th July, 2015, the Family Court Pune rejected

the said application filed by the Appellant. The Appellant,

thus, preferred this Family Court Appeal.

20. Mr. Pramod R. Arjunwadkar, learned counsel for

the Appellant has invited our attention to various orders

passed by this Court as well as the Family Court, awarding

various amounts of maintenance in favour of the Appellant

and against Respondent No.1 and also the order passed by the

Supreme Court against Respondent No.2. He submitted that

the Bank was already granted liberty to file an independent

proceedings for recovery of their claim, if any, against

Respondent No.1. Respondent No.1 was directed to be

Tikam page 9 of 20 FCA 7 of 2016.doc

arrested by the Division Bench of this Court.

21. Learned counsel relied upon the order dated 1 st

December, 2008 passed by the Supreme Court in Special

Leave Petition filed by Respondent No.1 and submitted that

the Supreme Court had clearly held that the entire

outstanding amount of maintenance was to be paid to the

Appellant out of the sale proceeds recovered by Respondent

No.2 Bank upon sale of the property of Respondent No.1. He

submitted that the review petition filed by Respondent No.2

Bank is already dismissed by the Supreme Court on merits.

He submitted that the order passed by the Supreme Court on

1st December, 2008, thus attained finality and was enforceable

against Respondent No.2 Bank.

22. It is submitted that the said order dated 1 st

December, 2008 would include the order of maintenance

decided by this Court subsequently and thus the said amount

awarded by this Court by modifying the order passed by the

Family Court ought to have been paid by Respondent No.2

Bank out of the sale proceeds and not only the amount which

was outstanding as on the date of the said order dated 1 st

December, 2008 passed by the Supreme Court.

Tikam                                                    page 10 of 20
                                         FCA 7 of 2016.doc


23.       Learned Counsel for the Appellant                 invited our

attention to the order dated 21 st July, 2011 and submitted that

Respondent No.2 admittedly has recovered a sum of

Rs.1,56,00,000/- from sale proceeds. He submitted that this

Court had already decided the priority for payment of the

dues of the Appellant and others. According to the said

order, the maintenance dues of the Appellant ought to have

been paid first, out of the sale proceeds. He submitted that

as on 1st December, 2008, the outstanding amount at the rate

of Rs.7,000/- p.m., was at Rs.6,18,500/-. He submitted that in

spite of the said order passed by this Court, Respondent No.2

Bank adjusted the amount of Rs.1,47,45,000/- towards Bank

dues out of the sale proceeds dues and paid sum of

Rs.8,55,000/- to Pune Municipal Corporation. Learned

counsel for the Appellant invited our attention to the reply

filed by Respondent No.2 Bank and submitted that the stand

taken by Respondent No.2 Bank is contrary to the orders

passed by this Court and the Supreme Court.

24. Mr. Tejesh Dande, learned counsel for Respondent

No.2 Bank invited our attention to the decree passed by the

Family Court, awarding maintenance on 13 th December, 2002.

Tikam                                                  page 11 of 20
                                          FCA 7 of 2016.doc


He submitted that since      Respondent No.1 did not pay the

amount of maintenance, the Appellant had filed Darkhast

Application for which the Respondent No.1 was arrested. He

submitted that Respondent No.2 was not party to the Special

Leave petition filed by Respondent No.1-Husband against the

order passed by this Court. He submitted that the review

petition filed by his client, however, came to be dismissed on

24th July, 2009.

25. Learned counsel for the Bank invited our attention

to the order passed by this Court on 24 th July, 2015 and

submitted that when this Court passed a decree of divorce,

this Court decided the Family Court Appeal on 21 st July, 2011

and this Court was fully aware of the order passed by the

Supreme Court. This Court in paragraph 54 held that already

the charge created on the said property, was wound up. No

further relief was granted in the said Civil Application. He

submitted that all the interim orders passed in the Family

Court Appeal came to be vacated.

26. It is submitted by the learned counsel for the Bank

that liability of Respondent No.2 to pay the maintenance from

the outstanding sale proceeds out of the property of

Tikam page 12 of 20 FCA 7 of 2016.doc

Respondent No.1 is not to be adhered for indefinite period. It

is submitted that the amount was deposited by Respondent

No.2 Bank before the Family Court Pune towards maintenance

as awarded by the Family Court. The said amount was

admittedly withdrawn by the Appellant. He submitted that

pursuant to the order dated 27 th February, 2017, Respondent

No.2 has also paid Rs.1,00,000/- to the Appellant without

prejudice to the rights of Respondent No.2 out of sympathy.

27. It is submitted by the learned counsel for

Respondent No.2 Bank that on the basis of the order passed

by this Court, subsequently, after the order of the Supreme

Court, enhancing the maintenance awarded by the Family

Court, cannot be the basis for the claim of the Appellant for

maintenance to be paid out of the sale proceeds. It is

submitted that the Executing Court has rightly held in the

order dated 24th July, 2015 that, the Supreme Court in the

order dated 1st December, 2008 nowhere mentioned that the

Bank is required to deposit the dues of the maintenance as

per the decree and also did not direct the Bank to deposit the

maintenance amount which become due after passing of the

order dated 1st December, 2008.

Tikam                                                      page 13 of 20
                                           FCA 7 of 2016.doc

28. Mr. Arjunwadkar, learned counsel for the Appellant

in his rejoinder arguments submitted that the Review Petition

filed by Respondent No.2 Bank was rejected by the Supreme

Court on merits and thus, the order passed by the Supreme

Court earlier has attained finality.

29. The questions that arises for consideration of this

Court is as to whether the Appellant could claim payment of

maintenance against Respondent No.2 Bank also, in respect of

the liability crystallized after 1 st December, 2008 out of sale

proceeds of the property of Respondent No.1 Husband sold

by Respondent No.2 Bank. Though the Supreme Court had

directed that the entire outstanding amount of maintenance is

required to be paid to the Appellant-Wife out of the sale

proceeds as on the date of the said order dated 1 st December,

2008, whether additional liability of maintenance adjudicated

upon subsequently by order passed by the Division Bench on

21st July, 2011 in Family Court Appeal No. 16 of 2003 and

other connected matters also has to be paid by the

Respondent No.2 Bank out of the sale proceeds.

30. The Family Court, Pune had passed an order on 13 th

December, 2002 in Petition C-No. 55 of 2001 for maintenance

Tikam page 14 of 20 FCA 7 of 2016.doc

filed by the Appellant under Section 18 of the Hindu

Adoptions and Maintenance Act and thereby directed the

Respondent-Husband to pay Rs.7,000/- towards maintenance

since the day of presentation of the petition i.e. since 29 th

May, 2001. The said order dated 13 th December, 2002 was

challenged by the Appellant in the Family Court Appeal

No.16/2003. The Respondent No.1 also challenged the said

decree by filing Family Court Appeal No. 16 of 2003. On 21 st

July, 2011, a Division Bench of this Court directed to pay a

sum of Rs. 10,00,000/- along with interest thereon at rate of

12% p.a. from 29th May, 2001 till its realization, which

amount be invested in the name of wife in appropriate Fixed

Deposit Scheme in a bank of her choice, towards lumpsum

permanent maintenance amount, in lieu of monthly

maintenance.

31. This Court by order dated 15th January, 2008 also

dealt with the application filed by Respondent No.2 Bank and

held that the Application filed by Respondent No.2 Bank does

not survive. This Court dismissed the Family Court Appeal No.

16/2003 filed by Respondent No.1 Husband against the

judgment and decree dated 13 th December, 2002 in Petition

Tikam page 15 of 20 FCA 7 of 2016.doc

A-No.28 of 2000 passed by the Judge, Family Court, Pune. So

far as Family Court Appeal No. 85 of 2003 filed by the wife for

enhancement of amount of maintenance is concerned, this

Court modified the judgment and decree passed by the Family

Court dated 13th December, 2002 and directed Respondent

No.1-Husband to pay within three months from the date of the

said order, Rs.10,00,000/- along with interest thereon at the

rate of 12% per annum with effect from 29 th May, 2001 till the

date of its realization.

32. It is thus clear that the decree passed by the

Family Court, directing Respondent No.1 to pay maintenance

@ Rs.7,000/- p.m. was substituted by lumpsum amount of

Rs.10,00,000/- with interest @ 12% p.a. with effect from 29 th

May, 2001 till the date of realization. The said order passed

by the Division Bench of this Court substituted the order

passed by the Family Court as the said order was passed after

the order of the Supreme Court on 1 st December, 2008. It is

not in dispute that the outstanding amount of maintenance as

on the date of the said order dated 1 st December, 2008 has

already been paid by Respondent No.2 Bank out of the sale

proceeds to the Appellant.

Tikam                                                 page 16 of 20
                                           FCA 7 of 2016.doc

33. The Appellant did not apply for clarification of the order

dated 1st July, 2008 before the Hon'ble Supreme Court passed

in Civil Appeal No. 6914 of 2008 filed by Respondent No.1

Husband against the Appellant-Wife, towards liabilities of

maintenance of Respondent No.1 towards the Appellant-wife

that would arise in future or enhance in future and that will

have to be borne by Respondent No.2 Bank out of the sale

proceeds after additional amount is already payable by

Respondent No.1 Husband in favour of the Appellant-wife by

virtue of the judgment dated 21 st July, 2011 passed by the

Division Bench of this Court.

34. It is common ground that it is not disputed by the

Appellant that Respondent No.2 was allowed to sell property

of Respondent No.1 for realizing the debts of Respondent

No.1 towards Respondent No.2 in respect of the loan

transaction in which Respondent No.1 had mortgaged his

flat in favour of Respondent No.2. The liability of Respondent

No.1 towards Respondent No.2 was crystalized and

Respondent No.2 was allowed to sell the said immovable

property of Respondent No.1 for realization of amount

payable by Respondent No.1 to Respondent No.2 Bank. After

Tikam page 17 of 20 FCA 7 of 2016.doc

order of the Division Bench of this Court, Respondent No.2

has already appropriated the amount due to Respondent

No.2 out of the sale proceeds from the property of

Respondent No.1 and also paid certain amount to the Pune

Municipal Corporation.

35. The Appellant ought to have applied for recovery of

the balance amount, if any, against Respondent No.1.

Respondent No.2 was not expected to pay the dues of

Respondent No.1 subsequently adjudicated upon by

enhancement out of the sale proceeds against which

Respondent No.2 was entitled to adjust and recover its dues

against Respondent No.1.

36. In our view, the Learned Counsel for Respondent

No.2 Bank is right in his submission that the order of the

Supreme Court passed on 1st December, 2008 in Civil Appeal

No. 6914/2008 filed by Respondent No.1 against the Appellant

did not direct the Respondent No.2 to pay the liability that has

accrued subsequently.

37. The Executing Court in its impugned order dated

24th July, 2005 has rightly held that the Appellant had filed the

Tikam page 18 of 20 FCA 7 of 2016.doc

Darkhast Application for recovery of total amount of

Rs.6,18,500/- which was outstanding against Respondent No.2

and after considering the order of the Hon'ble Supreme Court

and the request of Respondent No.1, the then Judge of the

Family Court had issued notice to Respondent No.2 with a

direction to deposit an amount of Rs.6,18,500/- towards

arrears of maintenance of decreeholder as per the direction

of the Hon'ble Supreme Court. It was rightly held by the

Executing Court that the order passed by the Supreme Court

on 1st December, 2008 did not mention that the Respondent

No.2 Bank is required to deposit the dues of the maintenance

as per the decree or to pay the dues hereinafter passing of

the order dated 1st December, 2008.

38. The Executing Court has rightly construed the

word " Outstanding", which was construed by the Supreme

Court in the order dated 1 st December, 2008, means the

outstanding maintenance dues till the order of the 1 st

December, 2008 and not later on. The Executing Court thus

rightly directed Respondent No.2 that Bank is liable to

deposit due maintenance amount till the order dated 1 st

December, 2008 of the Hon'ble Supreme Court and not later

Tikam page 19 of 20 FCA 7 of 2016.doc

on. The Executing Court held that the decreeholder has right

to proceed and take steps for recovery of remaining dues of

maintenance.

39. Respondent No.2 has admittedly deposited the said

amount as directed by the Family Court by order dated 24 th

July, 2015. The Appellant has admittedly withdrawn the said

amount. We do not find any infirmity in the order passed by

the Family Court dated 21st July, 2015. Hence we pass the

following order:

ORDER

(i) Family Court Appeal No. 7 of 2016 is dismissed.

(ii)          There shall be no order as to cost.




(M.M. SATHAYE, J.)                        ( R.D.DHANUKA, J. )




Tikam                                                     page 20 of 20