Sanjay Kumar Panda vs Rajeswari Panda And Others
2023 Latest Caselaw 1926 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 RPFAM No. 74 OF 2013
                 Sanjay Kumar Panda                        ....       Petitioner
                                                       Mr. S.S. Rao, Advocate
                                           -versus-
                 Rajeswari Panda and others                ....    Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             03.03.2023
   5.       1.      This matter is taken up through hybrid mode.

2. Order dated 30th August, 2013 passed by learned Judge, Family Court, Berhampur in E.P. No.62 of 2011 is under challenge in this RPFAM, whereby an application questioning maintainability of the execution case filed by the Petitioner, has been rejected.

3. Mr. Rao, learned counsel for the Petitioner submits that in MAT Case No.59 of 2003, Opposite Party No.1 had filed I.A. No.96 of 2007 in which a direction was made to pay pendente lite maintenance of Rs.500/- per month to each of the Opposite Parties. Due to non-payment of the pendente lite maintenance as directed, the Opposite Parties filed E.P. No.62 of 2011. The Petitioner filed petition questioning the maintainability of the said execution case on the ground that a direction vide judgment dated 11th May, 2006 passed by learned S.D.J.M., Berhampur in Misc. Case No. 257 of 2003 under Annexure-1 has already been made to pay maintenance of Rs.500/- per month to each of the Opposite Parties in a proceeding under Section 125 Cr.P.C. Thus, the

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Opposite Parties are not entitled to be benefitted twice by the order passed under Section 125 Cr.P.C. as well as under Section 24 of the Hindu Marriage Act, 1955 (for short 'the Act'). But, learned Judge, Family Court, Berhampur observing that both the proceedings are independent in nature, held the execution petition to be maintainable. Assailing the said order, the Petitioner has filed this RPFAM.

4. Mr. Rao, learned counsel for the Petitioner relied upon the decision in the case of Sudeep Chaudhary -v- Radha Chaudhary, reported in AIR 1999 SC 536, wherein the Hon'ble Supreme Court has held that the amount awarded under Section 125 Cr.P.C. is adjustable against the amount awarded in a matrimonial proceeding under Section 24 of the Act.

5. Although vide order dated 9th January, 2014 notices were directed to be issued to the Opposite Parties, but due to non-filing of requisites, notices could not be issued, as yet.

6. Upon hearing learned counsel for the Petitioner and on perusal of the record, this Court finds that the RPFAM has been filed under Section 19(4) of the Family Courts Act, 1984, which is not maintainable against an order passed in an execution case arising out of a civil proceeding. Further the executing Court cannot go behind the decree/order. Learned executing Court is duty bound to implement the order put to execution. The Petitioner could have raised such plea either in the proceeding under Section 24 of the Act or in the proceeding under Section 125 Cr.P.C. But the said plea is no more available to be raised in an execution case.

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7. In that view of the matter, learned Judge, Family Court, Berhampur has committed no error in dismissing the application filed questioning maintainability of the execution case.

8. Accordingly, the RPFAM being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

                                        (K.R. Mohapatra)
ms                                            Judge