HARIHARAN Vs. MALLIGA

JUDGEMENT

(1.) THE revision petition has been filed by the judgment debtor who is the husband of the 1st respondent herein. THE order sought to be revised is one directing the arrest of the petitioner herein on the ground that he had not complied with the order of the executing Court dated 21-4 1989, directing him to return the jewels to the 1st respondent.

(2.) THE relevant facts are as follows :? THE 1st respondent herein filed O.P. 84 of 1984 on the file of the Principal Subordinate Judge, Pondicherry, for dissolution ofher marriage with the petitioner and a direction to the petitioner herein to hand over the properties mentioned in the schedule to the petition as per S. 27 of the Hindu Marriage Act, hereinafter referred to as the Act. In paragraph 4 of the petition, it was stated as follows :? ?At the time of the marriage, the petitioner's parents on behalf of the petitioner had presented and handed over to the first respondent the properties mentioned in the schedule for conducting the conjugal home of both the husband and wife.? THE petitioner remained ex parte in the original petition. THE learned Subordinate Judge passed an order on 25-2-1985 granting divorce as prayed for by the 1st respondent herein and directed the petitioner herein to return items 2, 3 and 4 of the schedule mentioned properties. Besides, certain jewels set out in item I of the sc hedule are also ordered to be returned to the 1st respondent herein.

(3.) HOWEVER, the contention that theorder of the Court is nullity Is not available to the petitioner for the following reason-I have already extracted the relevant averment made by the respondent herein in theoriginal petition. As per the said averment, the property was presented at the time ofthe marriage and handed over to the firstrespondent for the purpose of conductingthe conjugal home of the petitioner and the 1st respondent. Thus, the averment is tothe effect that the property was to be enjoyedcommonly and it was a common property. On that footing, the 1st respondent prayedfor a direction under S. 27 of the Act forreturn of the property set out in the scheduleto the petitioner. The petitioner did notcontest the O.P. or raise an issue that theproperty was not the common property. Henever disputed the claim before the court. The only evidence available before the court was that of the first respondeat herein, onthe basis of the same, it directed delivery ofthe property referred to already, under theprovisions of S 27 of the Act. When there?as no issue before the court as to whether the property was common property ornot, there was no duty on the part of the Court to raise an issue by itself and decidethe question. A particular fact has to be pleaded by the party and he has to join issue with the opposite party on the averments of facts contained in the pleading of the opposite party. In this case, when there is a specific pleading by the first respondent herein that the property set out in the original petition was the common property, the petitioner ought to have disputed the same if he intended to contend that the court had no jurisdiction to pass the order in respect of that property. In the absence of any pleading by the petitioner, the court had jurisdiction to pass an order, as it did, with reference to the property set out in the schedule to the original petition.