Delhi High Court
Rajender Kaur & Anr. vs Smt. Labh Kaur (Since Deceased) ... on 24 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) Nos.1915-16/2006 & C.M.Nos.736/2009(Stay),
17318/2009 (under Section 151 CPC), 912/2012 (for
placing subsequent events on record)
% 24th September, 2014
RAJENDER KAUR & ANR. ......Petitioners
Through: Mr.Anubhav Bhasin with
Mr.Bhuvanesh Seghal, Advocates.
VERSUS
SMT. LABH KAUR (SINCE DECEASED) THROUGH LRS
...... Respondents
Through: Mr.Amit Paul, Respondent in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India is filed by
the petitioners against the order of the executing court dated 01.9.2006. The
executing court by the impugned order dated 01.9.2006 has issued warrants
of attachment against moveable property of judgments debtors/petitioners
for recovery of the interim maintenance amount.
2. The facts of the case are that one Smt. Labh Kaur, the original
plaintiff, filed a suit for maintenance against her husband Sh. Mehtab Singh,
Sh. Jasjit Singh; her step-son, Smt. Rajender Kaur; her step-daughter-in-law
and Sh. Surjeet Singh, her real son. Defendant no.5 in the suit namely Sh.
Amit Paul, and who is the respondent in this petition, was the real son of the
plaintiff Smt. Labh Kaur and he was sued as a proforma respondent in the
suit.
3. In the suit for maintenance, an interim order was passed in favour of
Smt. Labh Kaur on 13.1.2000, and the operative portion of the said order is
para 3 and which reads as under:-
" 3. Keeping the facts and circumstances and the fact that
the plaintiff is an old lady aged about 80 years and suffered
fracture, in view, I grant her interim maintenance allowance at
the rate of Rs.3000/- per month against the defendants No.1, 2, 3
& 4 jointly w.e.f. 23.12.98 i.e. the date of institution of this
application and onwards."
4. On the death of Smt.Labh Kaur, the main maintenance petition was
dismissed as infructuous vide order dated 28.8.2006 and which order
dismissing the suit as infructuous was challenged in this Court by the present
respondent in FAO No.151/2007. Though the appeal was dismissed, the
learned Senior Judge of this Court who decided the FAO No.151/2007 vide
order dated 30.4.2007, held that so far as the right to receive the interim
maintenance is concerned, the same survives even though Smt.Labh Kaur
expired. This interim maintenance amount was held to be a crystallized
amount and was held to be executable in favour of the legal heir of
Smt.Labh Kaur i.e the respondent herein, Sh.Amit Paul. The relevant paras
of the order dated 30.4.2007 in FAO No.151/2007 are paras 4 to 7, and
which read as under:-
"4. I agree with the reasoning of the learned Judge inasmuch as with
the death of Labh Kaur, entitlement of alimony against her husband
has come to an end.
5. The grievance of the petitioner appears to be that when the suit
was pending, an interim order was passed granting interim
maintenance and right of Labh Kaur to receive the interim
maintenance having got crystallized, sum receivable pursuant to the
interim order is a part of her estate. She having willed her estate to
the petitioner, petitioner was entitled to recovering interim
maintenance awarded to Labh Kaur.
6. If this is the grievance of the petitioner, I see no reason to set
aside the impugned order. The remedy of the petitioner is to seek
execution of the order directing interim maintenance to be paid to
Labh Kaur. Needless to state, till she died Labh Kaur was entitled to
the interim maintenance.
7. The appeal is dismissed."
5. A resume of the aforesaid fact shows that the entitlement of Smt.Labh
Kaur, and thereafter her legal heir; who is the respondent herein and who
was the defendant no.5 in the suit, in terms of the order of interim
maintenance dated 13.1.2000 is executable since the order dated 13.1.2000
makes all the four defendants in the suit jointly liable for payment of
maintenance amount to the plaintiff, Smt.Labh Kaur.
6. I cannot agree with the arguments urged on behalf of the petitioners
that the interim maintenance amount had to be divided by percentage
between the different defendant nos. 1 to 4 in the suit because the order
dated 13.1.2000 makes the defendant nos.1 to 4 in the suit, and who include
the petitioners, 'jointly liable' without holding that the defendants are liable
for the maintenance amount to the extent of 1/4 th each only. In case the
petitioners are paying the amount which is more than their share of
maintenance, then obviously petitioners can recover the excess amount paid
by them to the respondent herein, from the other defendants in the suit, but,
petitioners cannot dispute the liability to pay the interim maintenance
amount in view of the categorical language of para 3 of the order dated
13.1.2000, which has been reproduced above.
7. In view of the above, there is no merit in this petition, and the same is
therefore dismissed. Since the main petition is dismissed, all pending
applications will also stand dismissed.
8. The amount deposited by the petitioners in this Court be released to
the respondent, Sh. Amit Paul along with the accrued interest thereon if any,
by the Registry of this Court within a period of four weeks from today.
VALMIKI J. MEHTA, J
SEPTEMBER 24, 2014
KA
