SHAMIM AHMADS Vs. JUDGE FAMILY COURT AZAMGARH

JUDGEMENT

(1.) By an order dated 26.9.1996 passed in Suit No. 573 of 1995 by the Judge, Family Court, Azamgarh had allowed the application for maintenance filed by one Anjum and others. This order has been challenged by Shamim Ahmad and two others alleging that they are bona fide purchaser of the house belonging to the husband Shabbir Ahmad without notice. Therefore, part of the order dated 26.9.1996, by which the said property purchased by the petitioners has been charged for maintenance allowance, is wholly void and does not bind the petitioner. He has accordingly filed an objection which Is Annexure-4 to the writ petition before the Family Court after the decree was passed but the same has not yet been decided. On the other hand, the execution court has been directed to be proceeded with. In this petition, the petitioners seek the following reliefs : "(i) a suitable writ, order or direction in the nature of certiorari quashing the judgment and order dated 26.9.1996 in so far as the petitioner's house situated in Mehra-Chandpatti, Pargana and Tehsil Sagrl. district Azamgarh has been sought to be made the charge of the maintenance allowance" and to quash the Execution Case No. 2 of 1997, pending in the Court of respondent No. 1 in so far as it has attached the aforesaid house of the petitioners. (ii) a suitable, writ order, or direction in the nature of mandamus restraining the respondent No. 1 from proceeding any further with the Execution Case No. 2 of 1997. pending before it."

(2.) Shri A. N. Tripathi, learned counsel for the petitioner submits that under the Mohammedan Law there is no provision for attachment of the house for maintenance. He further submits that the property having been purchased by the petitioner, the order passed in the said proceeding is not binding on him. He also contends that since the maintenance has been granted till the attainment of majority, under the Mohammedan Law, it is available only for a period of two years and not beyond. According to him, even if such attachment is necessary, that can be passed only after the decree is passed and not before. On these grounds, he contends that the order dated 26.8.1996 should be set aside and the respondents shall be restrained from proceeding further with the execution. Alternatively he contends that his application/objection filed in the execution case be decided.

(3.) 1 have heard Sri A. N. Tripathi, learned counsel for the petitioner at length.