DESH RAJ Vs. BIMLA DEVI

JUDGEMENT

(1.) THIS Petition under Section 115 of the Code of Civil Procedure is directed against the order passed by the executing court whereby it allowed the execution petition and issued warrants of recovery against the petitioner. The petitioner is further aggrieved by the order dated 15.1.2015 passed by learned Addl. District Judge, Hamirpur before whom he had assailed the order passed by the executing court in appeal under Section 96 of CPC and withdrew the same on the question of jurisdiction.

(2.) THE respondent filed execution petition seeking execution of decree passed in her favour on 15.2.2002 in proceedings arising out of Section 13 of Hindu Marriage Act. The petitioner appears to have initially been awarded a maintenance allowance of Rs. 800/ - per month but the same on appeal was reduced by the appellate authority to Rs. 700/ -. By way of execution, she had claimed maintenance amount of Rs. 8400/ - for the period from 17.1.2013 to 16.1.2014. The petitioner though filed objections but the same do not make any head or tail as would be apparent from the later part of the discussion.

(3.) IT is strenuously argued by Sh. Arjun K. Lall, Advocate that the learned executing court has fallen in error by not taking into consideration that the respondent had earlier filed execution petition and claimed maintenance allowance Rs. 700/ - per month w.e.f. 26.8.1995 to 25.8.2007 wherein the total amount of arrears was shown to be Rs. 1,08,000/ -. Thereafter, respondent filed amended execution petition and further claimed a sum of Rs. 1,35,100/ - upto 9.12.2011. The petitioner, in pursuance to the execution petition, paid a sum of Rs. 1,41,000/ - towards maintenance upto 31.8.2012 which meant that he had already paid the advance maintenance of nine months. Therefore, in such circumstances, learned executing court was required to deduct the maintenance for these nine months and only thereafter alone could have proceeded to pass the impugned orders.