SAMIR SHARMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) By Court: Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party no. 2. An application was filed for maintenance under Section 125 of the Code of Criminal Procedure by Premlata Devi @ Krishna Devi on her behalf as well as on behalf of her four children against her husband Amar Kumar Sharma (since died). That application was allowed, vide order dated 1.7.2002 whereby maintenance of Rs. 5000/- per month was awarded each to Premlata Devi @ Krishna Devi and to her four children with effect from the date of filing of the petition, I.e. 25.1.1990 till 22.9.2002 on which date husband died, so far it relates to Premlata Devi @ Krishna Devi but so far children are concerned, till attainment of their majority. Subsequently, an application was filed on behalf of Smt. Premlata Devi @ Krishna Devi on 1.7.2002 for enforcing the order of maintenance by making a prayer for attachment of the property of her late husband. On that application an order was passed on 16.8.2002 whereby distress warrant was issued for realization of the amount accrued towards maintenance allowance Thereafter an application was filed by these two petitioners, Samir Sharma and Sheela Sharma @ Shila Basir raising objection over the issuance of distress warrant by taking plea that the property sought to be attached never belonged to the husband of Premlata Devi @ Krishna Devi, rather it exclusively belonged to them as those properties had come to their share by way of decree of the court passed in a partition suit. At the same time, one Bijay Kumar Sharma claimed to be the son of late Amar Kumar Sharma by filing an application took same type of objection which had been taken by the aforesaid two persons. However, no order was passed on an application filed by Samir Sharma and Sheela Sharma @ Shila Basir whereas an order was passed on 26.11.2002 by the Principal Judge, Family Court, Ranchi in Misc Case No. 9 of 1991 on an application which had been filed by Bijay Kumar Sharma whereby contention raised by Bijay Kumar Sharma was rejected by holding that estate of the deceased (husband of Premlata Devi @ Krishna Devi) can always be burdened with the charge of the above arrears of maintenance allowance. Subsequently, an application was filed by the said Premlata Devi @ Krishna Devi on 16.1.2003 wherein description of the properties were given and upon that application, an order was passed for issuance of a certificate for realization of the amount from the properties descriptions of which were given in the petition. Both the orders dated 26.11.2002 and 16.1.2003 are under challenge.

(2.) Learned counsel appearing for the petitioners submits that when a distress warrant was issued by the court for realization of the amount from the property belonging to the petitioners, an objection was taken but no order was passed on his application, rather an order was passed upon same type of application filed by Bijay Kumar Sharma on 26.11.2002 whereby it was held that estate can always be burdened with the charge of the above areas of maintenance allowance and therefore, an order passed by the court can be executed against the estate of the deceased Amar Kumar Sharma for realizing the amount as arrears of land revenue from the movable/immovable properties of late Amar Kumar Sharma. Thereupon, an application was filed by a Premlata Devi @ Krishna Devi wherein description of the properties were given which belonged to these petitioners as those properties had come to the share of these two petitioners by way of decree passed in a partition suit brought by these petitioners as well as the mother and the court without hearing the petitioners passed the order for issuance of the certificate which is quite illegal as the petitioners were never afforded with an opportunity to be heard and hence, the order passed by the court below on 16.1.2003 is fit to be set aside.

(3.) Mr. Anil Kumar, learned counsel appearing for the opposite party no. 2 submits that the properties which the petitioners are claiming to be their own, in fact, belonged to the father of the petitioner no. 1 as well as deceased husband of Premlata Devi @ Krishna Devi and as such, petitioner's husband should have been made party in the partition suit but he had never been made party in that partition suit and in that situation, any decree passed by the court on a partition suit would not be binding upon the successor of the deceased and under this situation, the court is absolutely right in passing the order dated 16.1.2003 as the property would be assumed as-joint family property.