GOPAL Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) G. Malaviya, J. This revision has been filed by the applicant-Gopal against the order dated 7-11-1985 whereby the Civil Judge, Varanasi allowed Criminal Revision No. 236 of 1984 of Shakuntala Devi against the order dated 14-4-1984 passed by the Sub-Divisional Magistrate, Varanasi (North), Varanasi for enforcement of the maintenance awarded by the SDM on 2-11-1979 on an application under Section 482 of the Code of Criminal Procedure, 1985.

(2.) IN the present case, it will suffice to mention that an application for grant of maintenance moved in the year 1971 was allowed by the SDM con cerned on 2-11-1979. The revision filed by Gopal, the husband, was dismissed by the Sessions Court. Therefore, the application was moved by Shakuntala Devi for enforcement of the order dated 2-11-1979, 31 items or movable pro perties were consequently attached. Father of the applicant, Nathu Seth filed a civil suit against the attachment of the movable properties. This suit was dismissed. The appellate court allowed the appeal of Nathu Seth but the High Court in second appeal filed by Shakuntala Devi on 24-11-1983 stayed the operation of the appellate court's order and restrained Nathu Seth from transferring the attached properties. Leaving all other details, suffice it to say that on 25-1-1984 Shakuntala Devi filed another application before the SDM, Varanasi (North) for enforcement of the maintenance amount calculated at the rate of Rs. 75 p. m. By this order dated 14-4-1984 the SDM (North), Varanasi rejected this application dated 25-1-1984 on the ground that this application should have been moved before the Judicial Magistrate and not before the SDM Shakuntala Devi preferred a revision and the revisional court placing reliance upon a Division Bench judgment of the High Court in case of Matoli v. Rukamani, 1978 ALJ 860, allowed the revision by holding that justice could not be interferred on technical ground. The learned Special Judge, Varanasi who allowed the revision noted the fact that although the High Court in the said case had accepted the proposition that the Executive Magistrate had no jurisdiction to entertain the application for enforcement of the order and such an application had to be presented before the Judicial Magistrate, had yet on the facts of that case found that it was not a fit case where the High Court should have interfered with the impugned order, with the result that the High Court had dismissed the petition which was moved before it under Section 482, Crpc.

(3.) I also cannot lose sight of the fact that in view of the facts and circumstances of this case, the Executive Magistrate had not passed any order for the enforcement of the maintenance amount consequently, while permitting the application dated 25-1-1984 to be treated as an application for the enforce ment of maintenance award, I direct that the said application shall now be transferred by the SDM, Varanasi (North) to the Judicial Magistrate having jurisdiction over the said area, who shall now proceed on the said application in accordance with law expeditiously. The SDM, Varanasi (North) shall transfer the said application to the Judicial Magistrate within two weeks from the date when the certified copy of this order is produced before him and the Judicial Magistrate concerned shall immediately take action over the said application by issuing notice to the parties concerned and by deciding the application thereafter, without any avoidable delay, in accordance with law.