Orissa High Court
Saishankar Choudhury vs Rajashree Samantaray .... Opp. Party on 26 November, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No.1008 of 2025
Saishankar Choudhury .... Petitioner
Mr. J. Pal, Advocate
-versus-
Rajashree Samantaray .... Opp. Party
Mr. S. N. Mishra, Advocate
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 26.11.2025
03. 1. Heard learned counsel for the parties.
2. By means of this application, the Petitioner seeks to set
aside the order dated 02.07.2025 passed in Criminal Execution
No.21 of 2025 wherein the learned Judge, Family court-I,
Bhubaneswar refused to stay further proceedings in Criminal
Execution Case No.21 of 2025 till disposal of the application
under Section 126(2) filed by the husband before the learned
Judge, Family Court-I, Bhubaneswar.
For the sake of convenience, the parties are addressed in the
manner they have been arrayed in the aforesaid Cr.P. No.186 of
2023.
3. In course of hearing in the application, it is submitted that
the learned court pursuant to the application filed by the Petitioner
registered as Cr.P. No. 186 of 2023 under Section 125 Cr.P.C.
admitted the case and directed for issuance of notice to the Opp.
Party/ husband fixing the date 28.02.2024 for appearance. On
28.02.2024 the learned counsel for the Petitioner was present but
for the absence of the Opp. Party the matter was posted to
22.04.2024 for appearance of the Opposite Party. On 22.04.2024
once again the matter was adjourned to 19.06.2024 for appearance
of the Opp. Party. On 19.06.2024 the learned court passed the
following order:
"Order dated 19.06.2024.
The petitioner is present with her counsel and
filed a petition supported by an affidavit praying for
substitution of the service of summon through E-mail
of the respondent/O.P. Heard. The prayer is allowed.
Put up on 19.06.24 for appearance of the O.P.
Petitioner to take fresh steps within a week."
Again on 19.06.2024 has passed the following order :
"Order dated 19.06.2024.
The petitioner is present with her counsel. The
OP is absent on repeated calls nor any steps taken
either. On perusal of the E-mail receipt, service
against the OP held to be sufficient. Hence, the OP is
set exparte. However, put up on 11.07.24 for hearing
on exparte."
On 11.07.2024 the learned court passed the following order :-
"Order dated 11.07.2024
The case record is posted today for hearing on
ex-parte. The petitioner is present with her counsel.
Counsel for the petitioner filed evidence affidavit
along with another evidence affidavit of the witness
Chintamani Samantray. The petitioner is examined in
chief, Ext.1 and Ext. 2 are marked into the evidence,
cross examination is nil and discharged as P.W.1
Further the witness Chintamani Samantray is
examined in chief, cross examination is nil and
discharged as P.W.2. At this stage counsel for the
petitioner prayed to close the evidence. Hence,
evidence of the petition is closed. However, put up
on 29.07.24 for argument."
4. On 29.07.2024 the evidence from the side of the Petitioner
was closed and the matter was placed for argument and finally the
judgment was passed on 28.09.2024 ex-parte against the Opp.
Party. The learned Judge, Family Court vide Judgment dated
28.09.2024 directed the Opposite Party to pay a sum of Rs.8,000/-
(Rupees Eight Thousand) per month to the Petitioner wife
towards her maintenance from the date of filing of the application
filed under Section 125 Cr.P.C. i.e. on 22.12.2023.
5. It is further submitted that in the said Cr.P. No.186 of 2023,
the Opp. Party was never served with notice but the notice having
held sufficient HE was set ex parte.
6. Perusal of the order dated 22.04.2024 passed in Cr.P No.
186 of 2023 discloses no notice has been sent to the Opposite
Party for appearance. Learned counsel for the Opp. Party herein
submitted that a notice through E-mail was sent to the Husband/
Opposite Party in the said proceeding but he did not cause HIS
appearance. Perusal of the E-mail notice reveals that no date was
fixed for appearance of the Opposite Party.
7. Free and fair trial with an opportunity of being heard to
the parties is the hall mark of adversarial system of adjudication.
No party can be deprived of his right of being heard. In the instant
case, apparently there appears no notice has never been served on
Opposite Party for appearance before the court and the learned
court sou motu presuming the notice to have been served on the
Opposite Party proceeded ex-parte against the Opp. Party.
However, since this part has to be gone into by the learned court
before proceeding with the execution for non-compliance of the
direction for payment of maintenance.
8. Learned counsel for the Petitioner drew the attention of this
Court that the application under Section 126(2) Cr.P.C. has been
filed before the learned Judge, Family Court-I, Bhubaneswar
registered as Criminal Misc. Case No.5 of 2025 which is pending.
In the aforesaid application, the Petitioner seeks the prayer to set
aside the ex parte order dated 28.09.2024 passed in Cr.P. No. 186
of 2023.
9. Having regard to the fact that no notice has been served at
any point of time on the Petitioner, the Petitioner is entitled to a
fair opportunity to put forth his grievance on the application under
Section 125 Cr.P.C. before the same is finally disposed of.
10. Keeping in view the aforesaid facts and circumstances
without any hesitation this Court feels it imperative to set aside
the impugned order dated 02.07.2024 passed in Criminal
Execution Case No.21 of 2025. Learned court below is directed to
dispose of the application of the Petitioner moved under Section
126(2) Cr.P.C. pending before it within a period of one month
hence. Both the parties are directed to appear before the learned
trial court on 08.12.2025 to receive further instruction from the
court. The Petitioner shall not seek further adjournment and
cooperate with the court for disposal of the aforesaid application
under Section 126(2) Cr.P.C. The CRLMP is accordingly
disposed of.
(Chittaranjan Dash)
Judge
KC Bisoi
Signed by: KRUSHNA CHANDRA BISOI
