M P SHREEVASTAVA Vs. VEENA

JUDGEMENT

(1.) THIS Letters Patent appeal arises in the following circumstances. The respondent Smt. Veena Shreevastava filed an application under Section 47 read with Section 151 of the Civil Procedure Code in the court of the learned District Judge, Delhi and claimed therein that the decree for restitution of conjugal rights passed in favour of her husband Dr. M. P. Shreevastava had been satisfied and a finding be recorded to that effect. She alleged in her application that in May 1961 she came to know that her husband had obtained an ex parte decree for restitution of conjugal rights and since she had always been ready and willing to live with him as his wife took this opportunity for going back to her husband and living with as his wife. She accordingly went to the house of her husband in Delhi on 25th of May 1961 but her husband was not present in the house. She waited for him and when he came back she greeted him but there was no response from her husband who immediately left the house and did not return for about two hours. She then left the house and went back to Calcutta with her father who had accompanied her to her husband's house. She also wrote two letters on the 6th of June 1961 and 16th of June 1961 under registered cover requesting her husband to allow her to live with him but the husband did not even take delivery of the letters. According to her some attempts made by friends to persuade her husband to take her back as wife also failed. Smt. Veena Shreevastava, therefore, contended that she had done all that she was required to do to carry out the directions given by the decree for restitution of conjugal rights and her husband should now be held to be debarred from claiming that there had been no satisfaction of the ex parte decree obtained by him for restitution of conjugal rights. One of the objections taken by the husband was that the application was not maintainable because the petitioner did not allege actual satisfaction of the decree and the application had not been made with the genuine desire by the applicant to live with the respondent. On pleadings of the parties the following two issues were framed- (1) Whether, as stated in the application, the decree for restitution of conjugal rights in favour of the petitioner (decree-holder) has been satisfied? (2) Whether the petition is not within time ? The learned District Judge came to the conclusion that genuine effort had been made by the wife to go and live with the husband but the husband had spurned that offer and had for reasons best known to him not cared to take her back. He further held that the petition was not barred by time. As a result (he learned District Judge recorded his finding that the decree for restitution of conjugal rights had been satisfied by the wife.

(2.) AN appeal was taken to this Court and was dismissed by I. D. Dua J. by his judgment dated the 20th May, 1964. After elaborately discussing the evidence on the record his Lordship agreed with the finding of the learned District Judge that the wife had done all that she was required to do under the decree against her and had all along been keen to live with her husband who was for reasons best known to him not inclined to accept her. Before the learned Single Judge an objection was taken by the learned counsel for the appellant that the decree for restitution of conjugal rights was not acceptable of being recorded as satisfied. According to the learned counsel no such satisfaction could be recorded at the instance of the Judgment-debtor. She must wait till an application for execution is made by the husband and may then set up as a defence that she had done all that she was required to do under the decree and therefore the same could not be executed. The only argument raised before us is with respect to this objection and reliance has been placed on the provision of Sections 22 and 27 of Special Marriage Act 43 of 1954 and on the provisions * Reported in AIR 1965 Punj 54. of Order 21 Rule 32, Civil Procedure Code. These points have been elaborately discussed by, the learned Single Judge and we are in entire agreement with the view expressed by his Lordship. The question has really to be answered in the light of provision of Section 47 of the Civil Procedure Code. Once it is shown that the wife is, not only willing, but has made all efforts to go and live with the husband as a wife and to reasonably do all that she is required to do under the decree it cannot be disputed that she can claim to have carried out and obeyed the decree. If a controversy arises whether she had in fact carried out the terms of the decree or not or has obeyed the decree or not that controversy would directly fall within Section 47 of the Code of Civil Procedure and would be a controversy arising between the parties to the suit in which the decree was passed relating to the discharge or satisfaction of the decree. It is the executing Court alone which can say whether she has in fact done all that she was required to do under the decree or not. That being so we are unable to agree with argument of the learned counsel for the appellant that the court of District-Judge could not record satisfaction of the decree. The finding by the learned District Judge that she did all that lay within her power to fulfil her obligation under the decree, has been upheld by the learned Single Judge. We have, therefore, to proceed to answer the question raised before us accepting those findings as correct. In this view the only answer to the questions can be that the executing Court was entitled to say that upto a particular date the Wife had done all that she was required to do under the decree. In the result the appeal fails and is dismissed but there will be no order as to costs.