B M MUNIRATNAM NAIDU Vs. SHANTAMMA

JUDGEMENT

(1.) This appeal arises in the following circumstances; one Muniratnam Naidu, the appellant in this case, filed a petition under Section 10 of the Hindu Marriage Act, 1955 for judicial separation. During the pendency of the petition, Shantamma, the respondent in this case, filed a petition under Section 24 of the Act, claiming maintenance during the pendency of the petition and expenses of the proceedings. The trial Court, on that application, passed an order directing that Muniratnam Naidu, the husband, should pay at the rate of Rs. 20/- per month for maintenance to his wife during the pendency of the proceedings and Rs. 50/- for expenses of the litigation.

(2.) Against that order, no appeal was preferred by Muniratnam Naidu. Some time later, Muniratnam Naidu did not prosecute the petition he filed, with the result the Court dismissed his petition for default. Thereafter, Shantamma filed Execution petition for recovery of the amount ordered to be paid under Section 24 of the Act in respect of the period during which the petition was pending. Muniratnam Naidu raised several objections, the main objection being that as the petition was dismissed, Shantamma could not execute the order passed under Section 24 of the Act. The learned Civil Judge overruled the objections and directed the execution to proceed. Aggrieved by this order, Muniratnam Naidu has filed this appeal.

(3.) Mr. Prahlada Rao, appearing for Muniratnam Naidu, relied upon a drcision in Shantaram Dinkar Karnik v. Malti Shantaram Karnik. AIR1964 Bom 83 , (1963)65 BOMLR441 , ILR1963 Bom 63 , and contended that when once the petition has been dismissed alimony and the costs of litigation ordered to be paid under Section 24 of the Act could not be recovered even though it might be in respect of the period during which the petition was pending. In that case, while dismissing the petition, filed by the husband, under Section 9 of the Act for restitution of conjugal rights, the trial court had directed that the husband should pay at the rate of Rs. 40/- per month to the wife permanently as maintenance. In those circumstances, disapproving what the trial court had done, his Lordship Shah J., observed as follows :