MAYADHAR MALLIK Vs. LAXMI MALLIK

JUDGEMENT

(1.) The impugned order of the learned Sub-Judge, Jajpur refusing to transfer the proceeding to Family Court, confirmed by the learned Additional District Judge, is under challenge in this writ petition.

(2.) The short fact of the case is that a suit for maintenance had been instituted by opp. parties 1 to 8, which was registered as T.M.S. No. 49 of 1987 in the Court of learned Subordinate Judge, Jajpur. The suit was decreed against the petitioner on 21-12-1989 directing him to make the payments towards maintenance. The petitioner having failed to make the payments is terms of the decree, the decree-holder (opp. parties 1 to 8) filed Execution Case, registered as Execution Case No. 7 of 1990 before the said Court of Subordinate Judge, Jajpur. The present petitioner-judgment-debtor filed a petition for transfer of the execution case from the Court of Subordinate Judge, Jajpur to the Family Court after establishment of the Family Court, Cuttack. The Subordinate Judge, on consideration held that the Civil Court alone can execute the decree. The petitioner carried a Civil Revision against the said order, which was rejected and the order passed by the Executing Court was confirmed.

(3.) Sri A R. Dash, learned counsel for the petitioner submitted that on a reading of the languages of Sections 7 and 8, after establishment of the Family Court under the Family Courts Act, 1984, the jurisdiction for execution of an order with regard to maintenance lies with the Family Court and as such, the refusal to transfer the matter to the Family Court cannot be sustained in law. Sri K.M. Mishra, learned counsel for the opposite parties however contends that the proceeding having been initiated before coming into force of the Family Courts Act and the order having been passed by a competent Civil Court and in view of the provisions of Sections 7, 8 and 18 of the Family Courts Act, 1984, only the Civil Court is competent to proceed with the execution case and, therefore, there is no infirmity in the orders of the Courts below in holding so.