JUDGMENT

R. G. Ketkar, J. - Heard Mr. Khankar, learned Counsel for the petitioner and Mr.Metkari, learned AGP for the respondent No.2 at length.

2. By this Petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 05.01.2018 passed by the learned Judge, Family Court No.2, Pune in Darkhast No.5 of 2016. By that order, the learned Judge issued attachment warrant through the Collector, District Pune in respect of the following properties: Gat No.24, 44, 47, 113, 126, 257 and 279 of Village Dhanore, Taluka Khed, District Pune and issued direction to Tehsildar, Taluka Khed, District Pune for attaching the share of the petitioner and selling the properties to the extent of outstanding dues.

3. In support of this Petition, Mr. Khankar submitted that petitioner and respondent No.1 herein have instituted Petition F.No.273 of 2006 under section 13B of the Hindu Marriage Act, 1955 (for short ''Act'') for dissolution of marriage by mutual consent. By order dated 25.07.2006, the Petition was allowed by the Family Court and the marriage between the petitioner and the first respondent solemnized on 02.03.1990 was dissolved by a decree of divorce by mutual consent under Section 13 B of the Act from the date of the order i.e. 25.07.2006. The learned Judge held that respondent No.1 is entitled to withdraw amount of Rs. 62,000/- lumpsum maintenance for herself and her daughter after judgment. The permanent custody of daughter Kalyani was to be retained by respondent No.1.

4. Mr. Khankar submitted that in pursuance of that order, petitioner has paid Rs. 62,000/- to the respondent No.1 as is evident from the order dated 25.07.2006 passed by the learned Family Court. He submitted that despite that, respondent No.1 filed proceedings before the Family Court, Pune claiming Rs. 5,00,000/- towards marriage expenses of daughter Kalyani. By order dated 01.08.2015, the learned Judge allowed the proceedings and directed the petitioner herein to pay Rs. 4,63,547/- towards marriage expenses of Kalyani together with interest @ 6% from the date of marriage till filing of the proceedings and from filing of the Suit till actual realization @ 6% p.a. as per section 34 of the Code of Civil Procedure, 1908 (for short ''C.P.C.''). He submitted that aggrieved by that decision, petitioner instituted proceedings under Order 9, Rule 13 of C.P.C. for setting aside ex-parte decree. As there was delay of 57 days in filing the application, Civil Miscellaneous Application No.107 of 2015 was filed. By order dated 21.03.2017, the learned Judge rejected that application. He submitted that respondent No.1 filed Darkhast on 04.01.2016 for recovery of Rs. 4,63,547/- together with interest. Respondent No.1 claimed Rs. 5,61,172/-. Mr. Khankar submitted that in the first place, respondent No.1 having received Rs. 62,000/- was not justified in filing proceedings for claiming marriage expenses of daughter Kalyani. Secondly, as the petitioner filed application under Order 9, Rule 13 of C.P.C. for setting aside ex-parte decree dated 01.08.2015 along with application for condonation of delay and the same is pending, respondent No.1 was not justified in filing the 2/5 ::: Uploaded on - 17/10/2018 ::: Downloaded on - 01/02/2019 16:13:22 ::: WP10954_18.doc execution proceedings. In fact, respondent No.1 is precluded from filing execution proceedings as the petitioner had filed proceedings challenging the ex-parte order. In support of these submissions, he relied upon Order 21, Rule 11(2) of C.P.C. Order 21, Rule 11(1) speaks about making of oral application in respect of decree for payment of money. Sub-rule (2) thereof lays down that save as otherwise provided by sub-rule (1), every application for execution of the decree has to be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court in terms of clauses (a) to (j) thereof. He submitted that petitioner is ready to deposit Rs. 1,50,000/- in this