ASHOKKUMAR Vs. SANGITABAI

JUDGEMENT

(1.) Heard Shri Goyal, learned counsel for the petitioner and Shri Garg, learned Counsel, who appears on show cause notice of I.A. No. 2332/87.

(2.) The question which arises for consideration in this revision petition is, whether an interlocutory order made in a proceeding under S.9 of the Hindu Marriage Act, can be executed on withdrawal and termination of the proceedings. The petitioner filed a suit under S.9 of the Hindu Marriage Act for restitution of conjugal rights. In the course of proceedings, an application under S.26 of the Hindu Marriage Act, for entrusting the custody of her son, Pawankumar, aged about 4 years, was made. By order dt. 8-5-87, the trial Court directed that custody of Pawankumar be restored to the respondent Sangita, mother of the child. After this order was made on 18-6-87, the petitioner moved an application under O.23, C.P.C. for withdrawal of the suit. Trial Court permitted the withdrawal on 14-7-87.

(3.) On 22-7-87, the respondent made an application for execution of the interim order for custody of Pawankumar, her son, passed on 8-5-87. It was registered as execution case No. 3/87. Trial Court on 25-7-87, passed the impugned order issuing a warrant against the petitioner. Shri Goyal, learned counsel appearing for the petitioner, contended that interim order for custody could not be enforced after withdrawal of the case. He also pointed out that even according to the respondent, the custody prayed for, was only interim till the decision of the suit and the suit having been withdrawn, the trial Court could not have passed the impugned order. Shri Garg, learned Counsel appearing for the respondent, on the other hand, submitted that interlocutory orders made in such proceedings can be executed even after their termination in withdrawal.