HEMALATA SAHU Vs. SUGYANI SAHU

JUDGEMENT

(1.) This appeal is directed against order dated 10-8-2005 passed in Misc. Case No. 4 of 2004 (arising out of Execution Case No. 6 of 2003) of the Court of learned Judge, Family Court, Cuttack by which he dismissed the aforesaid Misc. Case.

(2.) The factual backdrop is as follows : Smt. Sugyani Sahu (respondent herein) obtained a decree of maintenance against her husband-Rabi Narayan Sahu under Section 18 of Hindu Adoption and Maintenance Act, 1956 for a sum of Rs. 1,200/- (Rupees Twelve Hundred only) per month which was made payable from 7-4-1998. She levied the execution being Execution Proceeding No. 6 of 2003 for realization of maintenance. In the said proceeding order of attachment of immovable property to the extent of the share of judgment debtor was passed on 26-9-2003. The present appellant Hemalata Sahu being the mother of Rabinarayan Sahu tiled a petition under Order 21, Rule 58, C. P. C. to dismiss the Civil Proceeding No. 136 pf 1998 on the ground that the decree holder cannot be regarded as the wife of Rabinarayan Sahu because of statutory bar contained under Sections 5 and 18 of the Hindu Marriage Act, 1955 and, therefore, the execution proceeding is liable to be dropped and the order of attachment vacated. The learned Court below alter hearing, from both sides rejected the application and dismissed the Misc. Case occasioning the present appeal.

(3.) Learned advocate for the appellant has submitted that the impugned order is bad in law since the property belongs to a joint family to which the judgment debtor belongs and since all the members of the joint family have not been impleaded in the suit. Learned advocate for the respondent has supported the impugned order with vehemence.