Calcutta High Court (Appellete Side)
Moumita Chatterjee @ Manna vs Unknown on 21 September, 2021
26 21.09.2021 CRR 1707 of 2020
NB
(via video conference)
In the matter of:- Moumita Chatterjee @ Manna ...petitioner
Mr. Prosenjit Mukherjee,
Mr. Saptarshi Chakraborty.
...for the petitioner.
Mr. Imran Ali,
Mr. Ashok Das.
...for the State.
Mr. Chittapriya Ghosh
..for the OP.
The impugned order dated 22nd September, 2020 passed by the
learned Additional Judicial Magistrate, 1st Court, Uluberia in Misc.
Execution Case No.38 of 2020 arising out of judgment and order dated 22nd
September, 2020 passed by the learned Additional Judicial Magistrate
under Section 12 of the Protection of Women from Domestic Violence Act
thereby declining to attach the salary of the opposite party no.2/husband is
the subject of challenge of this revisional application.
Admittedly, there was a proceeding under Section 12 of the
Protection of Women from Domestic Violence Act taken out by the
petitioner/wife, and in connection with which petitioner/wife was favoured
with interim monetary assistance. The original proceeding under Section 12
of the Protection of Women from Domestic Violence Act has already been
concluded rendering a judgment, wherein the opposite party no.2/husband
duly precipitated in the proceeding to put up his defence.
Mr. Prosenjit Mukherjee, learned advocate representing the
petitioner/wife adverting to copy of application filed in connection with
pending execution case, submits that in connection with the instant
execution proceeding, a prayer for recovery of Rs.37,599/- (rupees thirty
seven thousand five hundred ninety nine only) was made for the non-
payment of the arrear monetary assistance, which was granted by the
learned Court below being one of the fruits of the proceeding.
Mr. Mukherjee contends that by the impugned order, the learned
Magistrate has mechanically rejected the prayer thereby declining to attach
the salary of the opposite party no.2/husband.
Learned advocate representing the opposite party no.1, State
appears upon responding to a notice being served upon the State. The
report furnished by State be taken on record.
Mr. Chittapriya Ghosh, learned advocate representing opposite
party/husband submits supporting the order of the Court below that the
learned Magistrate has rightly rejected the prayer for attachment of the
salary, and there lies nothing to be interfered with. It is also contended by
Mr. Ghosh that the opposite party no.2 has already paid huge amount to
petitioner/wife, and there is no such outstanding due liable to be recovered
by invoking any execution proceeding.
Upon perusal of the impugned order, it appears that the learned
Court below was not inclined to pass any order pertaining to the prayer for
attachment of salary of the husband without issuing any prior notice upon
him, as the service already effected was not sufficient as per the findings of
the learned Magistrate reached for the purpose.
The principle of law requires that no order should be passed
behind the back of opposite party, and every party to the case must be
given an opportunity of being heard.
Mr. Ghosh representing husband candidly submits that O.P
No.2/husband may furnish a statement of account to ascertain the
outstanding amount, and if there by anything due, the same may be
liquidated by the husband.
Mr. Prosenjit Mukherjee, learned advocate representing the
petitioner contends on such score that there are huge outstanding dues still
lying be recovered, and for which attachment of salary is necessary.
In the given context of this case, it is gathered knowledge in
course of the hearing that there are multiple execution cases pending in the
Court below, and the date of instant execution proceeding is fixed on 24th
September, 2121.
Mr. Ghosh, however, submits that he has received notice of
another execution proceeding.
The situation as it stands, ascertainment of actual amount, as
outstanding due, is a must, which may be facilitated upon furnishing a
statement of accounts by both the parties to the Court below.
Both the parties are under obligation to furnish their respective
claims upon submitting an account for the purpose before the Court below.
Upon furnishing such statement of accounts by both the parties to this
case, the Court below will be in a position to ascertain the actual amount
still lying due to be recovered in connection with pending execution case.
That being the position, both the parties are directed to furnish
their accounts before the Court below in terms of the observations made
herein above either on the date fixed by the Court below, or if for any
reasons whatsoever, the same could not be done, the statement of
accounts by both the parties may be peremptorily furnished within a
fortnight thereafter, preferably within 7th October, 2021. The learned Court
below is also directed in connection with the instant execution proceeding
to ascertain the exact amount, still lying due to be recovered from such
statement of accounts furnished by both the parties to this case, and if
there be any out standing amount, the same may be directed to be
recovered by passing an appropriate order in accordance with law after
providing sufficient opportunity of hearing to either of the parties to this
case, so that pending execution proceeding may be disposed of at an early
date.
With the above observations/directions, the instant revisional
application stands disposed of.
Petitioner is directed to make communication of this order to the
learned Court below.
Both parties are requested to cooperate with the learned Court
below so that the petitioner may not be deprived of the fruits of order,
passed in connection with the Protection of Women from Domestic
Violence Act.
Urgent certified photostat copy of this order, if applied for, be
given to the parties as expeditiously as possible on compliance of all
necessary formalities.
(Subhasis Dasgupta, J.)
