The wife was very much aware that she was to file an application under Order 21 Rule 22 of the C.P.C. and she would take necessary steps accordingly before the issuance of any writ. But she has prayed for an interim order of attachment on the ground that as soon as the notice is served under Order 21 Rule 22 of the C.P.C., the husband may dispose of the property to be attached.
No doubt as per Article 136 of the Limitation Act, 1963, the execution of a decree may be lodged at any time within 12 years from the date of passing of the order. The instant application for execution has been filed within the said period of limitation from the date of order. Further, the husband is required to pay the alimony monthly - meaning thereby a recurring cause of action would arise for non-payment of the alimony month by month. Therefore, the application cannot be stated to be barred by limitation at all.
Kolkata High Court (Appellete Side)
Smt. Ira Banerjee vs Sree Shibnath Banerjee on 13 July, 2011
Prasenjit Mandal, J.: Challenge is to the order dated August 17, 2010 passed by the learned Additional District Judge, 5th Court, Barasat in Mat. Execution Case No.1 of 2010 thereby rejecting the prayer for interim attachment on an application under Order 21 Rules 54 and 66 of the C.P.C.The husband / opposite party herein instituted the suit being Matrimonial Suit No.930 of 2000 against the petitioner for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The wife / petitioner herein is contesting the said suit. She filed an 2
application under Section 24 of the Hindu Marriage Act and that application was allowed, granting alimony pendente lite at the rate of Rs.3,000/- per month. The learned Trial Judge has also granted a litigation cost of Rs.3,000/-. Ultimately, the husband filed an application for dismissal of the said matrimonial suit for non-prosecution and that application was allowed. The wife filed an application for execution of the order of alimony for the period during which the suit was pending and that application has been converted into Money Execution Case No.1 of 2010. She filed an application for interim attachment and that prayer was rejected. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained.
Upon hearing both the sides and on consideration of the materials on record, I am of the view that the learned Trial Judge has committed errors of law in rejecting the application for interim order of attachment. The order of alimony was passed on October 11, 2001 directing the husband to pay alimony to the petitioner at the rate of Rs.3,000/- per month w.e.f. November 22, 2000 and a litigation cost of Rs.3,000/- only. So, recurring cause of action arises whenever the husband fails to make payment as per order dated October 11, 2001. Though, the matrimonial suit was dismissed for non-prosecution, the wife is entitled to recover the alimony for the period for which the order of alimony was 3
subsisting. In fact, the husband paid a sum of Rs.8,550/- as alimony for two months and the litigation cost of Rs.3,000/- after deducting a sum of Rs.450/- on account of postal charges. As per calculation, the wife is still entitled to get a sum of Rs.3,38,850/- and for non-payment of such amount the application for execution was preferred by the wife. The wife was very much aware that she was to file an application under Order 21 Rule 22 of the C.P.C. and she would take necessary steps accordingly before the issuance of any writ. But she has prayed for an interim order of attachment on the ground that as soon as the notice is served under Order 21 Rule 22 of the C.P.C., the husband may dispose of the property to be attached.
No doubt as per Article 136 of the Limitation Act, 1963, the execution of a decree may be lodged at any time within 12 years from the date of passing of the order. The instant application for execution has been filed within the said period of limitation from the date of order. Further, the husband is required to pay the alimony monthly - meaning thereby a recurring cause of action would arise for non-payment of the alimony month by month. Therefore, the application cannot be stated to be barred by limitation at all.
According to the decision of Lataben Yogendrakumar Goswami v. Yogendrakumar Shankargir Goswami reported in AIR 1996 Gujarat 103 enforcement of the interim order can be made irrespective of the 4
termination of the main proceeding of any ground either for merits or for non-prosecution.
Ad interim ex parte order of the nature as prayed for in the application is permissible in view of the decision of Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. & ors. reported in AIR 1999 SC 1975. Mr. Das Majumder appearing on behalf of the opposite party has submitted that the husband is a retired person and he has no income at present. So, the wife is not entitled to any maintenance. In support of his contention Mr. Das Majumder has referred to the decision of Smt. Pramila Bhatia v. Vijay Kumar Bhatia reported in AIR 2000 Rajasthan 362 and thus, he submits that the revisional application should be dismissed. In this respect, I am of the view that the questin of unemployment of the husband is not a matter of consideration at present. The order of alimony was passed upon hearing both the sides and the husband did not prefer any revision against the order of alimony. So, the order of alimony has attained its finality. Moreover, at the time of retirement, the husband has obtained service benefits and so, the husband is supposed to get service benefits at the time of his retirement. He is, therefore, able to make payment the entire dues to the wife at a time. I am, therefore, of the view that the decision of Pramila Bhatia (supra) is not applicable in the instant situation at all.
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In the instant case, before issuance of notice under Order 21 Rule 22 of the C.P.C., the wife prayed for interim order of attachment. The husband entered an appearance in this revisional application and as such, before issuance of any writ against the husband, he has entered an appearance. So, I am of the view that at present, the service of notice upon the husband under Order 21 Rule 22 has become infractuous and so, no notice under Order 21 Rule 22 of the C.P.C. need not be served.
While the matter was being heard, the husband was directed to make a payment of Rs.1 lakh by way of cheque vide order no.67, 2011. But the learned Advocate for the husband has expressed to his inability to make payment stating that he could not contact his client. Anyway, the ground is not convincing at all. Under the circumstances, the entire dues shall be recoverable at a time by executing the decree. In consideration of the entire matter, dues to be paid and the such fact that happened on July 6, 2011, I am of the view that the situation demands issuance of attachment as an interim measure in respect of the property of the husband as described in the schedule of the application. If it is not done and if the husband disposes of the said property, the wife will be deprived of her legitimate claim for alimony.
On the other hand, if the order of attachment is issued, the claim of the wife may be secured. Therefore, I am of the view that the petitioner has shown sufficient ground for entertaining 6
the prayer for attachment of the property of the husband as mentioned in the application before sale.
So, in consideration of all the aspects of the matter I hold that the application succeeds. It is, therefore, allowed. The impugned order cannot be sustained. It is hereby set aside. The husband / opposite party herein is prohibited from transferring or charging the property as described in the execution application in any way and all the persons are also restrained from taking any benefit of any transfer or charge in respect of the said property. Such an order of attachment of the said property of the husband shall remain in force till the disposal of the application for execution or the order of sale of the property in case under the provisions of Order 21 Rule 66 of the C.P.C. whichever is earlier. Both the parties are directed appear before the learned Executing Court on August 1, 2011 for receiving further directions from the Court below with regard to the date relating to fixation of the terms of the proclamation for sale under Order 21 Rule 66 of the C.P.C.
The learned Executing Court is, therefore, directed to take necessary steps with regard to attachment of the said property of the husband in terms of Order 21 Rule 54(2) of the C.P.C. He shall also take the necessary steps for sale of the property as per order 21 Rule 54(1A) of the C.P.C.
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Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)
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