VANKER KUBER JETHA Vs. VANKER LILABEN RAJA

JUDGEMENT

(1.) In a petition filled by the wife under Hindu Marriage Act for the restitution of conjugal rights decree was passed against the husband for restitution of conjugal rights and for payment of maintenance at the rate of Rs. 200.00 per month. The decree was passed by the learned Civil Judge (Senior Division) at Palanpur. The husband has filed an appeal in the District Court against that decree. It appears that he did not obtain any stay order from the District Court. The wife therefore filed the execution proceedings in the Court of the Civil Judge (Senior Division) at Palanpur. In the execution petition she only prayed for recovery of a sum of Rs.6 74 88 p. which according to her became due and payable under the decree. She sought the assistance of the Court in the matter of execution of the said part of the decree by arresting her husbandand putting him in civil prison. She stated that the amount of maintenance necessary to be deposited for the civil arrest of her husband was lying in Court in Regular Darkhast No. 10 of 1975. The present Darkhast is Regular Darkhast No. 65 of 1978. It was placed before the learned Judge on the same day and he made the following order: Arrest warrant to issue as subsistance amount is already lying in Court. It is this order which is challenged by the husband in this Civil Revision Application.

(2.) It appears that the learned trial Judge did not apply his mind to the relevant provisions of law Nor did he think fit to issue a notice to the husband before ordering arrest warrant to issue. T may invite his attention to Order 21 Rule 32 of the Code of Civil Procedure. It provides amongst others the mode in which the decree for conjugal rights can be executed. If a party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and had wilfully failed to obey it it may be enforced by attachment of his property. The only mode in which decree for restitution of conjugal rights can be enforced is by attaching the property of the judgmentdebtor. If the learned Judge had looked ai sub-rule (1) of Rule 32 of Order 21 he would have realized that arrest warrant in case of execution of decree for conjugal rights cannot be issued. A look at paragraph 4 at page 131 in the Code of Civil Procedure by Sir Dinshaw Mulla (Thirteenth Edition) would have also satisfied the learned Judge that decree for restitution of conjugal rights cannot be executed by arresting the husband -the judgment-debtor.

(3.) However in the instant case all that the wife sought was the recovery of the maintenance amount and the cost which had become due ai payable. Order 21 Rule 30 provides for the mode of execution of a decree for payment of money. It reads as follows: