UDHAV RAO SAHEB MAGAR Vs. LAXMIBAI

JUDGEMENT

(1.) The petitioner who was a judgment-debtor before the Judicial Magistrate, First Class, Latur, in Misc. Criminal Application No. 42 of 1983 (filed under section 128 of the Criminal Procedure Code) seeks to revise the order passed by the learned Additional Sessions Judge, Latur, dismissing the objection raised by the petitioner to the execution filed by present respondent No. 1.

(2.) The facts giving rise to this litigation may be briefly stated as follows: The present petitioner and respondent No. 1 are the husband and wife and the wedlock still subsists. It is also an undisputed position that the wife obtained an order of maintenance against her husband in Misc. Criminal Application No. 21 of 1976. The husband was directed to pay the maintenance of Rs. 45/- per month to his wife. It appears that the maintenance was not regularly paid and hence, the wife put in an application for execution contemplated under section 128 of the Criminal Procedure Code. This application was opposed by the present petitioner on the ground that after the passing of the order of maintenance by the learned Magistrate, there was an amicable settlement between the parties whereunder the husband gave five acres of land to his wife in lieu of maintenance. It was his contention that in view of this compromise, the wife filed Regular Civil Suit No. 590 of 1980 against her husband in the Civil Court and got a compromise decree. The copy of the alleged compromise decree has been filed before the trial Court. The main terms of the compromise appear to be that in lieu of maintenance the husband shall put the wife in possession of five acres of land towards northern side out of Gut No. 260 and accordingly possession was delivered to her on 8-10-1980. Another term of the compromiser was that in view of the settlement, the wife will not be entitled to claim maintenance in pursuance of the order of the Criminal Court. Another main term of the compromise was that in case there was any difficulty in the way of the wife in securing possession of the land so granted, she will have a right to claim maintenance according to the order passed by the Criminal Court. Other conditions are not necessary for the decision of controversy.

(3.) It was the contention of the husband, that in view of this compromise, the order passed by the learned Judicial Magistrate, First Class, granting maintenance has become extinct. He, therefore, prayed that the order should be cancelled.