Orissa High Court
Santosh Kumar Mohanty vs Jyotiprava Mohanty And Another .... ... on 10 January, 2024
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No.2520 of 2023
Santosh Kumar Mohanty .... Petitioner
Mr.A.K. Sahoo, Advocate
-versus-
Jyotiprava Mohanty and another .... Opp. Parties
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 10.01.2024
02. 1. Heard learned counsel for the Petitioner.
2. By means of this application, the Petitioner seeks indulgence of
this Court praying to set aside the order dated 18th November, 2023
passed by the learned Judge, Family Court No.II, Bhubaneswar in
Criminal Execution Case No.189 of 2022 wherein the learned court
rejected the prayer of the Petitioner to stay further proceeding in
Criminal Execution Case No.189 of 2022.
3. The background facts of the case are that pursuant to the
matrimonial discord between the husband and the wife i.e. the
Petitioner and Opposite Party No.1, the Opposite Party No.1 moved
an application before the learned Judge, Family Court under Section
125 Cr.P.C. registered vide CRP No.39 of 2020 claiming
maintenance for an amount of Rs.30,000/- per month for herself and
her minor son. The marriage was solemnized on 13th December
2006 as per the Hindu Rites and Customs and out of the wedlock
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the couple was blessed with a male child i.e. Opposite Party No.2
on 31st October, 2009. Since the Opposite Party Wife was subjected
to ill treatment and torture it was difficult for her to continue her
stay in the matrimonial house. The learned court having heard the
application ex parte against the Petitioner awarded a sum of
Rs.10,000/- per month in favour of the wife Opposite Party No.1
and Rs.5,000/- in favour of the minor son Opposite Party No.2
towards maintenance from the date of application i.e. 15th
February, 2020. For non-compliance of the direction of the court
below, Opposite Party wife proceeded with execution case
registered as Criminal Execution Case No.189 of 2022 for
realization of awarded maintenance from 15th February, 2020 to 26th
December, 2022. i.e. 34 months amounting to Rs.5,10,000/-
pursuant to the judgment dated 13th September, 2022.
4. The Petitioner moved the learned Judge, Family Court in an
application under Section 126(2) Cr.P.C. praying to set aside the ex
parte order dated 13th September, 2022 in CRP No.25 of 2023.
While the matter stood thus, the Petitioner filed petition in the
Criminal Execution Case No.189 of 2022 with a prayer to stay
further proceeding till disposal of CRP No.25 of 2023. The learned
court having heard the petition declined to grant the relief prayed
therein. Hence, this application.
4. It is submitted by the learned counsel for the Petitioner that in the
main application i.e. in Criminal Proceeding No.39 of 2020 notice
has not been served upon the Petitioner as a result he was prevented
from appearance. He further submitted that the execution
proceeding initiated pursuant to the ex parte judgment passed on
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13th September, 2023 is highly exorbitant and the Petitioner is not in
a position to pay the same. Learned counsel also brought several
other grounds challenging the merit of the application. In the
present application, however, this Court is concerned with the order
passed by the learned court below rejecting the prayer to stay the
Crl. Execution Proceeding No.189 of 2022 to see the legality and
correctness of the impugned order dated 18th November, 2023.
5. On perusal of the case record, it is found that the court has taken
a reasonable ground while declining the prayer of the Petitioner to
stay the execution proceeding. Before this Court, the learned
counsel submitted that a substantial amount has been paid by the
Petitioner towards the maintenance as awarded by the learned court
whereas perusal of the documents reveals that a sum of Rs. 30,000/-
has only been paid on 18th December, 2023 besides a sum of
Rs.7,000/- out of the arrear of Rs.5,10,000/- as on 26th December,
2022. The document is absolutely contrary to the submission made
by the learned counsel. The learned counsel has given an
impression before this Court that substantial amount has been
deposited so far by the Petitioner out of the awarded amount
towards maintenance whereas there is a huge amount lying arrear to
be paid by the Petitioner.
6. In the above circumstances this Court finds no infirmity in the
order impugned wherein the learned judge, family Court has rightly
declined to stay the further proceeding in Execution. Keeping in
view the facts and circumstances of the case and the arrear of
maintenance, this Court, directs that the Petitioner shall deposit
50% of the arrear dues to enable the learned court below to restore
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the main application to the file to give an opportunity of being
heard allowing the application under Section 126(2) Cr.P.C. There
shall not be a stay in the Execution Proceeding until deposit of the
said amount as directed is made within 15 days from this order. The
CRLMP stands disposed of.
(Chittaranjan Dash)
Judge
KC Bisoi
Signed by: KRUSHNA CHANDRA BISOI
