Full Judgment Text
NEUTRAL CITATION NO.:
2022/DHC/004595
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23.09.2022
Pronounced on: 02.11.2022
+ CRL.M.C. 3818/2022 & CRL.M.A. 15951/2022 (stay)
JAGDISH PABREJA ..... Petitioner
Through: Mr. Amulya Dhingra,
Advocate.
versus
SHALU PABREJA ..... Respondent
Through:
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. The instant petition under Article 227 of Constitution of India
read with Section 482 Code of Criminal Procedure Code, 1973 filed by
petitioner assails the orders dated 25.04.2022 and 26.05.2022
(“impugned orders”) passed by learned MM, Mahila Court (West) Tis
Hazari Courts, Delhi (“Executing Court”) in Execution No. 124/2019.
2. The Executing Court, vide order dated 25.04.2022, held that the
order granting interim maintenance passed on 22.03.2019 is operational
from the date of filing the application under Section 23 of Protection of
Women from Domestic Violence Act, 2005 (“DV Act”) which was
Signature Not Verified
CRL. M.C. 3818/2022 Page 1 of 14
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
09:57:34
NEUTRAL CITATION NO.:
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moved on 24.06.2013. The petitioner herein was further directed on
26.05.2022 to pay Rs.1,00,000/- out of the arrears of Rs.3,18,000/- by
06.06.2022.
3. Brief facts leading to the filing of instant petition, as disclosed in
the petition, are detailed as under:
3.1. As the relationship between the petitioner/husband and
respondent/wife became estranged, a case under Domestic Violence
Act, 2005 was filed by the wife in the year 2011, and vide order
dated 22.03.2019 on application filed by wife seeking interim
maintenance, maintenance was granted to her.
3.2. The wife had filed several applications for grant of interim
maintenance taking contradictory pleas and seeking contradictory
reliefs. She also did not address arguments on the initial application
seeking interim maintenance despite several opportunities given to
her. Thereafter, the matter had been listed for evidence vide order
dated 13.01.2015. Another application was filed by the wife on
16.12.2016 seeking interim maintenance.
3.3. The wife had been residing in the house of her mother-in-law
i.e. mother of the petitioner herein, however in compliance of
Judgment and Decree passed on 10.11.2017 by Civil Judge-04
(West) Tis Hazari Courts, Delhi in Civil Suit filed by mother-in-law
of the respondent, the respondent had vacated the said house. After
vacating the said house, the wife again filed another application
dated 20.11.2017 for grant of interim maintenance and order of
residence.
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
09:57:34
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3.4. After hearing arguments on the application dated 16.12.2016
an interim order on maintenance was passed on 22.03.2019, thereby
awarding interim maintenance of Rs.3,000/- each to the respondent
and the minor child, totaling Rs.6,000/- per month from the date of
filing of the application. The learned Trial Court held that this
amount includes the rental charges for the suitable accommodation
as well, if any, from the date of her vacation from the matrimonial
home. It was also ordered that the school, conveyance and
stationery and uniform expenses of the minor child will be borne by
the petitioner separately.
3.5. Thereafter, an execution petition no. 124/2019 claiming an
exaggerated and incorrectly calculated amount of Rs. 5,28,000/-
from the date of 23.12.2011 till 22.04.2019 was filed. The
petitioner/husband filed objection to the execution petition on
22.08.2019 stating that the amount has been wrongly and
erroneously calculated on the incorrect basis from the date of filing
of the petition under Section 12 of DV Act.
3.6. The wife filed another application on 21.12.2020 i.e., after 19
months for seeking clarification of the time period about the
applicability of interim order dated 22.03.2019. The petitioner filed
his reply to the said application and the learned Trial Court while
dealing with the objections filed by the petitioner herein in the
execution proceedings disposed of the objections and held that the
order dated 22.03.2019 is operational from the date of filing of the
application under Section 23 of DV Act i.e., 24.06.2013.
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
09:57:34
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3.7. During the execution proceedings on 26.05.2022, the learned
Trial Court directed the petitioner to pay Rs.1,00,000/- out of
arrears of Rs.3,18,000/-. The petitioner paid Rs. 1,00,000/- on
06.06.2022 through Bankers Cheque bearing No. 056803 dated
03.06.2022 in the name of wife/respondent, with application for
praying that the said amount of Rs. 1,00,000/- being retained on
court record and release to the respondent only subject to the
outcome of the appeal which the petitioner was contemplating to
file, but the learned Trial Court dismissed the said application and
released the said amount of Rs. 1,00,000/- to the respondent.
4. Learned counsel appearing on behalf of the petitioner has made
the following submissions:
4.1. The order dated 25.04.2022 passed by the Executing Court is
not only arbitrary, without jurisdiction, based on conjecture and
surmise and bad in law, but is also in violation of settled principles
of law and is liable to be set aside.
4.2. Impugned order was passed without jurisdiction as the court
had become functus officio after passing the order of maintenance
and as an Executing Court, in the execution petition, no
clarification could have been given to the effect that interim
maintenance would be payable from 24.06.2013. Executing Court
had no jurisdiction to review or revise or entertain its own order
without prayer being made in that regard by any of the parties.
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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4.3. Executing Court could not have passed the interim order w.e.f.
24.06.2013 by ignoring the order dated 13.01.2015 wherein it is
recorded that the wife does not require maintenance.
4.4. By granting interim maintenance from the date of application
dated 24.06.2013, the Executing Court committed an error as at that
time the interim relief sought was for handing over duplicate keys
of the main entrance gate of the house of her mother-in-law where
the wife was residing at that time.
4.5. The Trial Court noted in its order dated 22.03.2019 that there
are three applications being applications dated 24.06.2013,
16.12.2016 and 20.11.2017 filed by the wife but no date of
application was specified in the operative part of the order, and this
aspect could have only been clarified by the court who had passed
the interim relief and not by the Executing Court.
4.6. Respondent prayed for residence order for the first time in
interim application dated 20.11.2017 in view of Decree and
Judgement dated 10.11.2017 passed by the learned Civil Judge.
Executing Court incorrectly granted the rent amount for suitable
accommodation w.e.f. 24.06.2013 since at that time the respondent
was neither entitled to nor had prayed for residence order as she
was residing in her mother-in-law‟s house without paying any rent.
4.7. Executing Court could not have modified or revised its own
order without any prayer after a lapse of 3 years. Executing Court
failed to appreciate that an application seeking clarification of
operation of the interim maintenance order dated 22.03.2019 is still
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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pending and instead of deciding the same, the impugned order was
passed arbitrarily and without jurisdiction.
4.8. Executing Court held that the order dated 22.03.2019 will be
operative from 24.06.2013, though the respondent had filed the
execution for realization of Rs. 5,28,000/- calculated from the date
of filing of the main DV petition in 2011 and not from the date of
24.06.2013.
4.9. Executing Court did not give any reasons for modifying the
operation of interim maintenance order retrospectively from
24.06.2013, except that interim maintenance application is to be
allowed from the date of application.
4.10. Impugned orders have been passed in haste and without
giving sufficient opportunity to the petitioner to avail any legal
remedy against these orders.
4.11. Impugned order dated 25.04.2022 is also bad in law in view
of Section 362 Cr.P.C., which prohibits the court from changing or
modifying the order once it has been signed, except where provided
by law.
4.12. Executing Court illegally directed the petitioner to pay Rs.
1,00,000/- vide order dated 26.05.2022 despite request being made
by the petitioner/Judgment Debtor for giving time to appeal against
these orders.
5. I have gone through the submissions and perused the documents
annexed with the present petition.
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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6. It will be relevant for this Court to look into as to whether the
determination/clarification by the Executing Court with respect to „date
of filing of application‟ in the impugned order was permissible in light
of settled law or not.
7. Section 47 of the Code of Civil Procedure, 1908 provides for the
questions to be determined by the court executing decree, and the same
is reproduced as under:
(1) All questions arising between the parties to the suit in
which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree
and not by a separate suit.
*
(3) Where a question arises as to whether any person is or is
not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.
Explanation 1.-- For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom a
suit has been dismissed are parties to the suit.
Explanation II.-- (a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall
be deemed to be a party to the suit in which the decree is
passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be
deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section.
8. The Hon‟ble Supreme Court in Vasudev Dhanjibhai Modi vs.
Rajabhai Abdul Rehman and Ors., (1970) 1 SCC 670 has held as
under:
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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A Court executing a decree cannot go behind the decree:
between the parties or their representatives it must take the
decree according to its tenor, and cannot entertain any
objection that the decree was incorrect in law or on facts.
Until it is set aside by an appropriate proceeding in appeal or
revision, a decree even if it be erroneous is still binding
between the parties
9. As also held in Deepa Bhargava & Anr v. Mahesh Bhargava &
Ors [2008 (16) SCALE 305], a n executing court, it is well known,
cannot go behind the decree. It has no jurisdiction to modify a decree. It
must execute the decree as it is.
10. However, the Apex Court in Topanmal Chhotammal v.
Kundomal Gangaram, AIR 1960 SC 388 had observed that in case of
any ambiguity in a decree, the executing court would be entitled to
interpret the same in terms of the pleadings and the judgment. The said
observation is as under:
"At the worst the decree can be said to be ambiguous. In such
a case it is the duty of the executing Court to construe the
decree. For the purpose of interpreting a decree, when its
terms are ambiguous, the Court would certainly be entitled to
look into the pleadings and the judgment."
11. In Bhavan Vaja v. Solanki Hanuji Khodaji Mansang (1973) 2
SCC 40, the Apex Court while elaborating the aforesaid proposition,
observed as under :
“20. It is true that an executing court cannot go behind the
decree under execution. But that does not mean that it has no
duty to find out the true effect of that decree. For construing a
decree it can and in appropriate cases, it ought to take into
consideration the pleadings as well as the proceedings leading
up to the decree. In order to find out the meaning of the words
employed in a decree the court, often has to ascertain the
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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circumstances under which those words came to be used. That
is the plain duty of the execution court and if that court fails to
discharge that duty it has plainly failed to exercise the
jurisdiction vested in it. Evidently the execution court in this
case thought that its jurisdiction began & ended with merely
looking at the decree as it was finally drafted. Despite the fact
that the pleadings as well as the earlier judgments rendered by
the Board as well as by the appellate court had been placed
before it, the execution court does not appear to have
considered those documents. If one reads the order of that
court, it is clear that it failed to construe the decree though it
purported to have construed the decree...”
(emphasis supplied)
12. The question as to whether the Executing Court is entitled to
look into the judgment to determine the question regarding
executability of decree, in case decree is silent also came up for
consideration before the Privy Council in Bank of Bihar Ltd. v.
Sarangdhar Singh [1948 (Vol. 61) LW 747]. The Privy Council
observed that it is permissible to look into the judgment also while
considering the executability of the decree.
“The rule is well established that an execution Court cannot
go behind the decree and question its correctness; but when
the decree is silent, as in the present case, and gives no
indication as to what property should be sold in execution, it is
permissible for the Court to look into the judgment in order to
find out whether upon any issue properly raised and
determined as between the parties interested the property
brought to sale has been held to belong to the judgment-
debtor .”
13. As per legal propositions discussed hereinabove, when an
ambiguous decree is passed, it is the duty of the executing court to
interpret the decree and for this purpose the court is entitled to look into
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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the pleadings and the judgment. This Court is, therefore, of the opinion
that discretion vests in the Executing Court to interpret the decree to
resolve the ambiguity with regard to the date from which the husband
was liable to pay maintenance to the wife.
14. In the present case, the ambiguity in the decree was as to which
application filed by the wife i.e., respondent herein was referred to by
the Trial Court while ordering the interim maintenance from the “date
of filing of the application”. The relevant part of order granting interim
maintenance is reproduced below:
“18. Hence, considering the income of respondent no. l, as
clear from certificate as Rs. 15,000/- and additional income of
Rs. 6,000/- from part time job and in the absence of any
income proof of respondent no. 1 by the petitioner. it is clear
that he is earning Rs. 21,000/- per month, I hereby award
interim maintenance @ Rs. 3,000/- per month each in favour
of the petitioner and her child (totaling to Rs. 6,000/- per
month) from the date of filing of the application. This amount
includes the rental charges for the suitable accommodation as
well, if any from the date of her eviction from the matrimonial
house. The school expenses would be paid separately by the
respondent no.l in the school itself along with conveyance,
stationary and uniform charges...”
(emphasis supplied)
15. The Executing Court, in the impugned order, clarified that the
said date of application was 24.06.2013. The observation of Executing
Court is as under:
5. Vide order dated 22.03.2019 interim maintenance has been
awarded to the petitioner (DB herein) from the date of filing of
the application. It is pertinent to mention that the said order
has been moved on the interim application filed by the
petitioner under section 23 (2) of the DV Act for grant of'
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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interim maintenance. It is submitted by the Learned counsel of
the decree holder that the first separate application for grant
of interim maintenance was filed on 24.06.2013 but the interim
relief has been prayed for in the main petition dated
23.12.2011 and thereafter, three more applications have been
filed for the same relief. The order is very clear that the same
is applicable from the date of filing of the application i.e
24.06.2013 when .the application under section 23 (2) of the
Protection of Women from Domestic Violence Act seeking for
interim relief has been filed and not as suggested by Learned
counsel of JD.
6. It is a settled law that maintenance is awarded from the date
on which the application is made before the concerned Court
and the right to claim maintenance must date back to the date
of filing the application as the rationale of granting
maintenance from the date of application find its roots in the
object of enacting maintenance legislations, so as to enable
the wife to overcome the financial crunch which occurs on
separation from the husband.
7. Hence, the order is operational from the date of filing the
application under Section 23 of DV Act moved on 24.06.2013.
Accordingly, the objection moved on behalf of JD stands
dismissed.
16. It is the case of petitioner, which also finds mention in the
impugned order, that various applications seeking interim maintenance
and other reliefs were filed over a period of time, including applications
filed on 24.06.2013, 13.01.2015, 16.12.2016 and 20.11.2017. Before
this Court, it was argued on behalf of petitioner that interim relief
sought under application dated 24.06.2013 was for handing over
duplicate keys of the main entrance gate of the house of her mother-in-
law where the wife was residing at that time. It was further averred that
vide order dated 13.01.2015, it has been recorded by the Trial Court
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that the wife did not require maintenance at that point of time. Attention
of this Court was also drawn to the fact that the amount awarded as
interim maintenance by the Trial Court includes the rental charges for
the suitable accommodation as well, if any from the date of her eviction
from the matrimonial house, and since the said eviction had taken place
pursuant to an order dated 10.11.2017 and the relief qua residence was
sought by the wife only under application dated 20.11.2017, the same
could not have been awarded from 24.06.2013.
17. In the present petition, an application under section 20 and 23 of
DV Act seeking interim maintenance dated 16.12.2016, and an
application dated 20.11.2017 seeking order of residence along with
disposal of earlier interim maintenance application has been annexed.
Other applications seeking interim reliefs filed on 24.06.2013 and
13.01.2015 have not been placed on record, in view of which,
averments on behalf of petitioner cannot be verified.
18. The counsel for petitioner had argued that no relief regarding any
clarification on the aspect of “date of application” was sought in the
execution petition, and a separate application was filed for the same.
But the Executing Court did not consider the specific application filed
by the decree holder in this regard and the objections thereto filed by
the petitioner, and the same still remains pending. It was argued that in
doing so, the Executing Court without any prayer been made in
execution petition, suo motu issued clarifications in the impugned
order.
19. A perusal of record shows that the impugned order has been
passed in the Execution petition no. 124 of 2019 filed on behalf of the
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
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wife/decree holder. In the said petition, the only relief sought was
payment of Rs.5,28,000/-, from the period 23.12.2011 to 22.04.2019
for total 7 years 4 months @ Rs. 6,000/- per month. Objections to this
petition were filed before the Executing Court by the petitioner.
Thereafter, a separate application was filed on 21.12.2020 on behalf of
decree holder seeking clarification from the executing court as to from
what date the payment of maintenance was to be made. Objections to
the same were also filed by the petitioner. However, a perusal of the
impugned order dated 25.04.2022 reflects that the said order has been
passed in the Execution petition no. 124 of 2019, after considering the
objections filed by the petitioner to the execution petition, wherein the
Executing Court went on to clarify that order of the Trial Court will be
applicable from the date of application filed on 24.06.2013.
20. The question regarding date of filing of application is quite
significant in this case since several applications were filed over a
period of five years seeking similar or overlapping reliefs by the
wife/respondent as per the changing circumstances in her matrimonial
life, and any error in determination of the correct date shall have an
effect on the amount to be paid or liability to be incurred by the
petitioner in pursuance to order of the trial court.
21. The date of payment of rent and amount of rent are also
significant to be determined in the case. In view of observations made
in preceding para no. 17 of this order, the exact date and amount of rent
payable should be specified by the learned Court in view of the order
dated 13.01.2015 and relief sought by wife on 24.06.2013.
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Digitally Signed
By:ZEENAT PRAVEEN
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22. In the given situation, the Executing Court ought to have
considered the application seeking clarification filed by the wife/decree
holder and also the objections filed thereto by the petitioner, and then
should have decided the same. However, as observed in preceding
paras, it appears that the said application and objections filed to the
application have not been considered by the Executing Court.
23. In view thereof, the matter is remanded back to the Executing
Court with a direction that the application filed by the wife/decree
holder seeking clarification and the objections filed by the
petitioner/judgment debtor be considered by the Executing Court.
24. The present petition stands disposed of in the above terms.
Pending application i.e. CRL.M.A. 15951/2022 also stands disposed of.
SWARANA KANTA SHARMA, J
NOVEMBER 2, 2022/zp
Signature Not Verified
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Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:03.11.2022
09:57:34