YUDHISTHAR SINGH Vs. SMT. SARITA SANKHALA

JUDGEMENT

(1.) - This special appeal is directed against the order dated 12.03.2004 passed by the learned Judge, Family Court, Jodhpur, rejecting the application filed by the appellant under Sec. 47 C.P.C. Briefly stated the facts of the case are that the Family Court, Jodhpur passed a decree for restitution of conjugal rights between the parties by judgment dated 13.10.1999. The petition filed by the appellant for dissolution of marriage by decree of divorce was dismissed by the same Court. The appellant- husband aggrieved by the judgment for restitution of conjugal rights as well as the rejection of the petition for divorce referred two separate appeals before this court. The Division Bench of this court by judgment dated 22.04.2002 dismissed both the appeals. The Division Bench while dismissing both the appeals observed as follows :

(2.) The respondent wife filed an execution application before the Family court stating that she was prepared to go with her husband but he was not accepting her. The appellant husband in pursuance of the notice filed an application under Sec. 47 C.P.C. registering the execution of decree on the ground of delay in filing the application for execution without any explanation. It is stated that irrespective of the fact that it was not stayed by the High Court the application for execution was filed after delay of two and half years. During this period, no efforts were made for the compliance of the order passed by the Division Bench. It is also stated that there has been a difference between the parties since 1992 and the decree holder was not at all interested in staying with him. The application has been rejected by the impugned order stating that it is after decision of the High Court, the application for the execution has been filed. It was further held that the appellant-husband is under obligation to comply with the decree for restitution of conjugal rights and, as such, the decree holder was entitled to get the decree executed in accordance with the provisions of Order 21 Rules 32 and 33. It is contended by the learned counsel that the provision of Order 21 Rule 32 Code of Civil Procedure are not attracted where the decree holder is not taking interest for the execution in reasonable time.

(3.) Having heard learned counsel for the parties, we are of the view that the appeal deserves to be dismissed being devoid of merit. Order 21 Rule 32 C.P.C. provides method for executing the decree for restitution of conjugal rights. According to sub-rule (1) if the judgment debtor fails to obey the decree it can be enforced against him by attachment of his property. Sub-rule (3) says that if in spite of attachment of the property for a period of six months, the judgment debtor fails to obey the decree, the attached property shall be sold in case the decree holder makes an application in this regard. The court in that event may award to the decree holder such compensation as it thinks fit. The rule does not provide that the court shall give physical custody of the person who suffered the decree of the decree holder. Thus, the decree for restitution of conjugal rights can be executed in a symbolic manner. Consequently, the civil misc. appeal stands dismissed being devoid of merit. No order as to costs. Appeal dismissed.