Orissa High Court
Sashikanta Mohanty vs Priyambada Chhotray @ Mohanty And on 4 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.304 of 2019
Sashikanta Mohanty .... Petitioner
Mr. N.C. Rout, Advocate
-versus-
Priyambada Chhotray @ Mohanty and .... Opp. Parties
another
Mr. R. Achary, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 04.01.2023
5. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this RPFAM assails the order dated 21st
November, 2019 (Annexure-7) passed by learned Judge, Family
Court, Bhubaneswar in Criminal Execution No.67 of 2018
(arising out of CRP No.204 of 2016), whereby a petition filed
by the Petitioner to stay further proceeding of the Execution
Case till disposal of CMC No.5 of 2019 filed under Section 126
(2) Cr.P.C., has been rejected.
3. Mr. Rout, learned counsel for the Petitioner submits that
Opposite Parties filed CRP No.204 of 2016 under Section 125
Cr.P.C., which was allowed ex-parte vide judgment dated 12th
April, 2018 directing the Petitioner to pay maintenance at the
rate of Rs.3,500/- per month to each of the Opposite Parties
with effect from the date of application, i.e., 11th November,
2016. Opposite Parties (Petitioners therein) had intentionally
not given the correct address of the Petitioner, for which the
Petitioner could not contest the said proceeding under Section
// 2 //
125 Cr.P.C. and ex-parte order was passed. However, Opposite
Parties subsequently filed Criminal Execution Case No.67 of
2018 and on receipt of notice in the said execution case, the
Petitioner came to know about the order passed in CRP No.204
of 2016. He, immediately thereafter, filed an application under
the proviso to Section 126(2) Cr.P.C. for setting aside of the ex-
parte judgment, which was registered as CMC No.5 of 2019
and is pending for adjudication. Referring to the notice in
execution proceeding, Mr. Rout, learned counsel for the
Petitioner submits that at the relevant time the Petitioner was
serving as Head Clerk in the office of the Sub-Divisional
Veterinary Officer, Keonjhar and notice accordingly was served
on him in the said execution case. But the notice in the petition
under Section 125 Cr.P.C. was sent in his permanent address,
i.e., village Kalipokhari, PO: Nalita Pahandi, Gopa in the
district of Puri. As, there was no occasion on the part of the
Petitioner to know about the proceeding under Section 125
Cr.P.C., he filed an application for stay of the execution
proceeding till disposal of the CMC No.5 of 2019. Learned
Judge, Family Court, Bhubaneswar holding that there is no
order passed in CMC No.5 of 2019 setting aside the ex-parte
judgment and order dated 12th April, 2018 passed in CRP
No.204 of 2016, refused to entertain such application.
Mr. Rout, learned counsel for the Petitioner also refers to the
report of the special messenger at Annexure-2 in CRP No.204
of 2016 and submits that the present Petitioner was not staying
in the address given in the petition under Section 125 Cr.P.C.
Hence, this RPFAM has been filed.
// 3 //
4. Mr. Achary, learned counsel for Opposite Parties
submits that notice in the permanent address of the Petitioner
was duly served in Criminal Proceeding No.204 of 2016 filed
under Section 125 Cr.P.C. On receipt of the same, he did not
contest the case. Accordingly, ex-parte order was passed. By
the time the Criminal Execution Case No.67 of 2018 was filed,
the Petitioner was serving as Head Clerk in the Office of Sub-
Divisional Veterinary Officer, Keonjhar. Hence, notice was
issued in his official address, which was duly served. It is his
submission that neither there is any order staying operation of
the order passed under Section 125 Cr.P.C. nor the ex-parte
order has yet been set aside. Thus, learned Judge, Family Court,
Bhubaneswar has committed no error in refusing to stay the
Execution Proceeding till disposal of CMC No.5 of 2019.
5. Upon hearing learned counsel for the parties, it is crystal
clear that the issue with regard to service of notice to the
Petitioner in the proceeding under Section 125 Cr.P.C., i.e.,
CRP No.204 of 2016, is pending for consideration in the
proceeding under proviso to Section 126 (2) Cr.P.C. (CMC
No.5 of 2019).
6. However, the next issue that arises as to whether the
execution proceeding should be stayed during pendency of
CMC No.5 of 2019. Admittedly, there is neither any order
staying operation of order passed under Section 125 Cr.P.C. nor
the ex-parte order has yet been set aside. As submitted by
learned counsel for both parties, CMP No.5 of 2019 is still
pending for adjudication. The order passed by learned Judge,
Family Court, Bhubaneswar in CRP No.204 of 2016 is valid
and would be in operation till it is stayed or varied. That having
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not been done, a proceeding for implementation of the said
order is maintainable.
6. Order under Section 125 Cr.P.C. is passed to save the
wife and child from penury. Hence, stay of the execution
proceeding at this stage will certainly be a travesty of law, more
particularly when there is no order staying operation of the said
order. It appears that CMC No.5 of 2019 is pending for last
three years; thus, a party in whose favour an order of
maintenance has been passed, cannot wait for eternity to receive
maintenance till the proceeding under proviso to Section 126(2)
of Cr.P.C. is disposed of. It further appears that relationship
between the parties is also not in dispute. Hence, the Petitioner
is bound to maintain his wife and child who have no source of
income. As such, I find no infirmity in the impugned order.
7. Accordingly, the RPFAM being devoid of any merit
stands dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
