JHAGAROO Vs. KEWALI

JUDGEMENT

(1.) Respondent No. 1, Smt. Kewali instituted a suit against the Petitioner, which was registered as O.S. No. 124 of 1979, claiming therein that she was legally wedded wife of the Petitioner Jhagaroo and she must be paid maintenance for herself and for her son from the Petitioner, Ram Lal, who is Respondent No. 2 in this writ petition. The Petitioner pleaded that Respondent No. 1 was not his legally wedded wife and one Smt. Susheela was his wife. It was also pleaded by the Petitioner that the suit was not maintainable before the Munsif and family court had exclusive jurisdiction to try the suit. The suit was decreed by Munsif Mohamadabad, Ghazipur. Appeal filed from the same being Civil Appeal No. 209 of 1982 was also dismissed on 18.12.1985. In para-7 of the writ petition, it has been stated that second appeal is pending in this High Court, however no number of the same has been given.

(2.) Thereafter Respondent No. 1 filed execution application before the Court which had passed the decree i.e. Munsif Mohammadabad, Ghazipur, which was registered as Execution Case No. 5 of 1986. In the execution case Petitioner filed objections under Section 47, Section 151 and Order XXI Rule 29, Code of Code of Civil Procedure which was registered as Misc. Case No. 13 of 1989. In the objections, Petitioner reiterated his contention of bar of jurisdiction. It was further alleged in the objections that Smt. Shushila had filed a case in the form of Suit No. 35 of 1988 against the Petitioner in the family court. The learned Munsif, Mohammadabad, Ghazipur rejected the objections of the Petitioner through order dated 09.01.1990. Against the said judgment and order, Petitioner filed Civil Revision No. 3 of 1990, which was dismissed by A.D.J./ Special Judge on 03.08.1991, hence this writ petition.

(3.) As far as bar of jurisdiction is concerned, it was raised in the suit as well as in civil appeal hence it could not again be raised in execution. In this regard reference may be made to Bharmappa Nemanna Kawale and Anr. v. Dhondi Bhima Patil and others, 1997 AIR(SC) 122 and "P.V. Jose v. Kanickammal", 2000 AIR(SC) 2688.