Indraditya Tripathy vs Aditya Narayan Tripathy
2023 Latest Caselaw 12360 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C). NO.30943 OF 2023
                 Indraditya Tripathy                  ....                     Petitioner
                                                       Mr. Amit Prasad Bose, Advocate
                                               -versus-
                 Aditya Narayan Tripathy                          ....        Opp. Party


                           CORAM:
                           JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                         10.10.2023

 01.        1.      This matter is taken up through hybrid mode.

2. Order dated 22nd June, 2023 (Annexure-1) passed by learned Judge, Family Court-II, Bhubaneswar in Civil Execution No.08 of 2022 (arising out of C.P. No.514 of 2011) is under challenge in this writ petition, whereby the Execution Case was dismissed.

3. It is submitted by Mr. Bose, learned counsel for the Petitioner that C.P. No.237 of 2011 was filed by the petitioner for dissolution of marriage by a decree of divorce between the parties. C.P. No.514 of 2011 was filed by the Opposite Parties under Section 18 of the Hindu Adoption and Maintenance Act, 1956 read with Section 7 of the said Act.

4. Further Cr.P. No.61 of 2012 was filed by the Opposite Parties under Section 125 Cr.P.C. All the proceedings were disposed of by a common judgment dated 23rd February, 2015 with a direction as under:

"The C.P. No. 237/2011 filed by the petitioner-husband against the respondent-wife praying for dissolution of marriage is allowed on contest in favour of the petitioner husband and C.P. No. 514 of 2011 and C.R.P. No. 61 of 2012 filed by the petitioner No.1-wife and son Indraditya

// 2 //

Tripathy, petitioner No.2 against the husband and his parents and younger brother are dismissed on contest. A decree of divorce is passed and the marriage between the petitioner and the respondent is hereby is hereby declared dissolved with effect from the date of decree. The petitioner is directed to pay permanent alimony of Rs.

30,00,000/- (Rupees thirty lakhs) to the petitioner and he is also directed to bear all the educational and medical expenses of the minor son. He also directed to pay monthly maintenance of Rs. 5,000/- (Rupees five thousand) to the minor son towards his fooding and other expenses. Any deviation to comply the order of the Court, the petitioners are at liberty to take further action through due process of law."

5. After the order was passed, a settlement was arrived at between the parties on 13th August, 2019 (Annexure-9) to the effect that the Opposite party shall pay a sum of Rs.25,000,00/- in toto which will cover the permanent alimony and maintenance of both mother and the son (Petitioner and her son). However, the Petitioner filed an Execution case in Civil Execution No.08 of 2022 for execution of the order as quoted above. Learned Judge, Family Court dismissed the execution case on the ground of settlement arrived at between the parties vide Annexure-3. It is his submission that the mother could not have arrived at a settlement to the detriment of the interest of the minor son. Thus, the settlement arrived at is not legal and cannot be acted upon. This aspect was not considered by learned Judge, Family Court while passing the impugned order. Hence, this writ petition has been filed.

6. Upon hearing learned counsel for the Petitioner and on perusal of the impugned order, it appears that the execution case has been filed by the Petitioner as the mother guardian of her minor son namely, Indraditya Tripathy. It also appears that learned Judge, Family Court has recorded a finding that the Petitioner voluntarily admitted the terms and conditions of family settlement under

// 3 //

Annexure-3 by receiving a lump some amount of Rs.25, 000,000/- towards permanent alimony and maintenance of both mother and son with an undertaking not to raise claim in future against the Opposite Party, for which the Civil Execution Case No.2 of 2019 filed by the Petitioner was allowed to be withdrawn by the Court. But subsequently, the Petitioner again file the present execution petition on self same ground ignoring the family settlement deed.

7. In view of disposal of the Execution Case No.02 of 2019 in terms of the Family Settlement as at Annexure-3, a subsequent execution case in Execution Case No.08 of 2022 was not maintainable.

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

(K.R. Mohapatra) Judge

Rojalin

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Oct-2023 10:35:57