Order for interim maintenance in executable.

The facts giving rise to this appeal are these: The appellant Krishnan, and the respondent, Thailambal, were duly married according to Hindu rites. But, unfortunately, differences arose latterly. On 8th December, 1958, the husband filed O.P. No. 39 of 1958 (Sub-Court, Dindigul) under section 12 of the Hindu Marriage Act, 1955 for declaring the marriage a nullity on the ground of alleged impotency of the respondent. During the pendency of the above petition the wife filed an application, I.A. No. 31 of 1959, on 23rd June, 1959 under section 24 of the Act for interim maintenance and expenses of the proceeding. Actually even before O.P. No. 39 of 1958 was filed, she had filed M.P. No. 324 of 1958 on 23rd August, 1958 under section 488, Criminal Procedure Code, before the Sub-Divisional Magistrate of Usilampatti. After filing O.P. No. 39 of 1958, the husband moved for a stay of the enquiry into that petition pending disposal of O.P. No. 39 of 1958. This application was rejected by the learned Magistrate. He filed a Criminal Revision Case No. 167 of 1959 in this Court against that order. This Court granted stay of M.P. No. 324 of 1958 and allowed the wife to file an application for maintenance in O.P. No. 39 of 1958. It was thereafter that the wife filed I.A. No. 31 of 1959.

On 18th February, 1960, the trial Court i.e., the learned Subordinate Judge, made an order in I.A. No. 31 of 1959 directing the appellant herein to pay Rs. 50 per month for maintenance from the date of the petition and Rs. 250 towards expenses of the proceedings-as a condition precedent for the trial of the main petition, O.P. No. 39 of 1958. The husband carried the matter in appeal in C.M.A. No. 13 of 1959 to the learned District Judge. The learned District Judge reduced the amount for the expenses to Rs. 200 and otherwise confirmed the order of the learned Subordinate Judge. The above order was passed on 26th October, 1960. Thereafter on 24th November, 1960, the husband made an endorsement in. O.P. No. 39 of 1958 that he did not have the means to comply with the order for payment of maintenance and the expenses and that he was not pressing the original petition. The original petition was dismissed on 29th November, 1960.

M.P. No. 324 of 1958 was renumbered as M.C. No. 1 of 1959 and came on for enquiry before the Magistrate. On 9th March, 1961, the parties entered into a compromise by which the husband agreed to pay at Rs. 32 per month from 9th March, 1961, the first of such payment being payable on 10th April, 1961. The husband says that he has been paying the amount ever since.

The wife filed E.A. No. 237 of 1962 in O.P. No. 39 of 1958 on the file of the executing Court (Sub-Court, Dindigul) for recovery of a sum of Rs. 1,077-26 and for transferring the decree for execution to the Sub-Court at Ootacamund, where the appellant was employed. This amount was made up of Rs. 831-66, the maintenance ordered in I.A. No. 31 of 1959 and confirmed in C.M.A. No. 13 of 1960 for the period 23rd June, 1959 to 24th November, 1960. Secondly, it included a sum of Rs. 200 being the expenses as ordered in C.M.A. No. 13 of 1960. The remainder represented the costs of the execution.

The husband resisted E.A. No. 237 of 1962 on the grounds-one, that the order passed on 18th February, 1960 in I.A. No. 31 of 1959 and confirmed with modification in C.M.A. No. 13 of 1960 was not executable and ceased to have effect when the appellant made the endorsement on 24th November, 1960, that he was not pressing the O.P. and as a result the O.P. itself was dismissed. The contention is that the order was only meant as a condition precedent to the appellant having the benefit of proceeding with the trial of O.P. No. 39 of 1958 and that when he did not choose to proceed with that matter, the order had no other efficacy. The second objection was that even if the above contention was not accepted, the parties, by tentering into an arrangement or compromise on 9th March, 1961 in M.C. No. 1 of 1