Sudhansu Sekhar Jena vs Kalpana Parida & Another
2023 Latest Caselaw 4743 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLMC No.2826 of 2022
                                   &
                        I.A. No. 445 of 2023

  Sudhansu Sekhar Jena                    ....               Petitioner
                                                           In person


                               -Versus-


  Kalpana Parida & Another                ....      Opposite Parties
                                            Mr. S. Dash, Advocate

            CORAM:
            JUSTICE R.K. PATTANAIK

                    DATE OF ORDER:01.05.2023

1.

Instant application is filed by the petitioner for recall of the judgment dated 25th January, 2023 passed by this Court in CRLMC No. 2826 of 2022 on the ground that the proceedings in CMC Nos. 8 of 2019 and 1 of 2021 under Section 126(2) Cr.P.C. to be still pending adjudication in the file of learned Judge, Family Court, Bhubaneswar in connection with CRP No. 83 of 2013 filed against the exparte order of maintenance in favour of the opposite parties.

2. In fact, the petition under Section 482 Cr.P.C was filed by the petitioner assailing the order in Criminal Execution No. 27 of 2020 arising out of CRP No. 83 of 2013 pending disposal of CMC Nos. 8 of 2019 and 1 of 2021 and issuance of execution of NBWA towards recovery and realization of arrear maintenance as unjustified which was dismissed by the judgment dated 25th January, 2023 which is sought to be recalled at present.

3. Heard Mr. Jena in person and Mr. Dash, learned counsel for the opposite parties.

Sudhansu Sekhar Jena Vrs. State of Odisha

4. Mr. Jena submits that the proceedings in CMC Nos. 8 of 2019 and 1 of 2021 are pending and not yet decided by the learned court below and therefore, the judgment dated 25th January, 2023 passed in CRLMC No. 2826 of 2022 is required to be recalled in the interest of justice for providing him an opportunity to participate seeking recall of the exparte order of maintenance in terms of Section 126 (2) Cr.P.C, which is strongly objected to by Mr. Dash, learned counsel for the opposite parties.

5. Gone through the citations relied upon by Mr. Jena and also Mr. Dash, learned counsel for the opposite parties.

6. Considered the rival contentions of the respective parties.

7. Considering the chequered history of the case and discussing the details of the earlier proceedings as the petitioner challenged series of orders one after other and approached this Court number of times, the judgment dated 25th January, 2023 was passed. In the meantime, the petitioner has paid some amount of maintenance by the orders of the leaned court below under the peculiar circumstances which has been taken cognizance of by this Court yet huge outstanding is due against him payable towards maintenance to the opposite parties. After considering all the aspects of the case and examining the claims of the parties, this Court disposed of the matter on 25th January, 2023 and declined to interfere with the impugned execution pending in the file of learned Judge, Family Court, Bhubaneswar.

8. Having regarding to the totality of the circumstances, the Court does not find any reason to recall its judgment dated 25th January, 2023 passed in CRLMC No. 2826 of 2022. The Court considered the pleadings on record and thereafter stayed its hand from interfering with the execution proceedings pending before the Family Court and delivered the judgment dated 25th January,

Sudhansu Sekhar Jena Vrs. State of Odisha

2023 which is, therefore, not required to be recalled with the conclusion that no remedy under Section 126(2) Cr.P.C. is left and pending decision vis-à-vis the exparte maintenance order.

9. In the result, the application at the behest of the petitioner stands dismissed. However, having regard to the fact that the petitioner is to pay off and clear huge outstanding dues, the coercive action taken against him may be executed subject to payments in installments and immediate deposit of certain amount which is left to the discretion of the learned Judge, Family Court, Bhubaneswar and to consider it before proceeding with the execution. It is, therefore, directed that the learned court below shall undertake the above exercise within a fortnight and allow such reasonable time to enable the petitioner to pay and deposit the initial amount it considers appropriate and fix such conditions as would be necessary and expedient and till that time to defer taking coercive action against him. The direction as above shall be read as a supplement with reference to the judgment dated 25th January, 2023 passed by this Court while disposing of CRLMC No. 2826 of 2022.

BALARAM Digitally signed by BALARAM BEHERA (R.K. Pattanaik) Judge BEHERA Date: 2023.05.04 21:47:31 +05'30'

Balaram