Madhya Pradesh High Court
Sunil Sahu vs Chandravati Sahu on 8 April, 2022
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 639 of 2021
(SUNIL SAHU Vs CHANDRAVATI SAHU)
Dated : 08-04-2022
Shri Saurabh Singh Thakur, learned counsel for the appellant.
Shri Sanjeev Kumar Singh, learned counsel for the respondent.
Heard on admission.
Appeal is admitted for final hearing.
Also heard on I.A. No.6332/2021, which is an application for grant of stay.
Learned counsel for the appellant submits that after service of notice of
appeal and I.A. No.6332/2021, the counsel for respondent put in appearance and
upon prayer was granted two weeks' time as a last chance to file reply of said I.A.
Again on 31/03/2022 the counsel for respondent prayed for and was granted time.
Today also the counsel is seeking time.
Accordingly, learned counsel for appellant opposes prayer made by learned
respondent's counsel for another adjournment. Learned counsel for the appellant
submits that present appeal has been filed against the judgment and decree dated
24/07/2021 whereby application filed by the respondent/applicant under Section 9
of the Hindu Marriage Act has been allowed and decree of restitution of conjugal
rights has been granted, in pursuance of which the respondent is pressing the
execution filed by her and the learned Court below is executing the decree.
Upon asking learned counsel for the appellant failed to point out actual steps
taken by the executing Court and prayed time to submit the order sheets of the
executing Court.
Heard the learned counsels and perused the record.
Apparently, the learned Court below has vide judgment and decree dated
24/07/2021 allowed application under Section 9 of the Hindu Marriage Act and
dismissed the counter claim filed by the appellant/husband under Section 13 of the
Hindu Marriage Act.
The relevant provisions under the Code of Civil Procedure relating to
Signature
SAN
Verified
Not execution of the decree for restitution of conjugal rights, are as under:
Digitally signed by
RASHMI RONALD
"Order 21 Rule 32.- Decree for specific performance for restitution of
VICTOR
Date: 2022.04.13
14:20:28 IST
conjugal rights or for an injunction.-
(1) Where the party against whom a decree for the specific performance of
a contract, or for restitution of conjugal rights, or for an injunction, has been
passed, has had an opportunity of obeying the decree and has willfully failed to
obey it, the decree may be enforced in the case of a decree for restitution of
conjugal rights by the attachment of his property or, in the case of a decree for the
specific performance of a contract or for an injunction by his detention in the civil
prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for
an injunction has been passed is a corporation, the decree may be enforced by the
attachment of the property of the corporation or, with the leave of the Court, by
the detention in the civil prison of the directors or other principal officers thereof,
or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in
force for [six months] if the judgment-debtor has not obeyed the decree and the
decree-holder has applied to have the attached property sold, such property may be
sold; and out of the proceeds the Court may award to the decree-holder such
compensation as it thinks fit, and shall pay the balance (if any) to the judgment-
debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of [six months]
from the date of the attachment, no application to have the property sold has been
made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an
injunction has not been obeyed, the Court may, in lieu of or in addition to all or any
of the processes aforesaid, direct that the act required to be done may be done so
far as practicable by the decree-holder or some other person appointed by the
Court, at the cost of the judgment-debtor, and upon the act being done the
expenses incurred may be ascertained in such manner as the Court may direct and
may be recovered as if they were included in the decree.
"Order 21 Rule 33.- Discretion of Court in executing decrees for
restitution of conjugal rights.-
(1) Notwithstanding anything in Rule 32, the Court, either at the time of
passing a decree [against a husband] for the restitution of conjugal rights or at any
time afterwards, may order that the decree [shall be executed in the manner
provided in this rule.]
(2) Where the Court has made an order under sub-rule (1) it may order that,
in the event of the decree not being obeyed within such period as may be fixed in
this behalf, the judgment-debtor shall make to the decree-holder such periodical
payments as may be just, and, if it thinks fit, require that the judgment-debtor shall,
to its satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under
sub-rule (2) for the periodical payment of money, either by altering the times of
payment or by increasing or diminishing the amount, or may temporarily suspend
the same as to the whole or any part of the money so ordered to be paid, and again
review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as
though it were payable under a decree for the payment of money."
From bare perusal of the aforesaid two rules, it is clear that the decree of
restitution of conjugal rights can be executed only under the aforesaid provisions
and not otherwise.
Subject to hearing the respondent and in the present facts and circumstances
of the case, it is directed that in case of disobedience of the decree, the executing
Court shall execute the decree only as per provisions contained in Order 21 Rule
33 CPC and shall not take any other coercive action against the appellant.
Counsel for the respondent is granted further two weeks' time to file the
reply.
List after two weeks.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
RS
