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2016 Supreme(MP) 250
HIGH COURT OF MADHYA PRADESH
Alok Aradhe, J.
Dinesh Sharma v. Jyoti Sharma
Civil Revision No.200 of 2004 (Jabalpur) : against the order dated 16.1.2014, passed by Family Court, Bhopal; Decided on 2.2.2016
M.P. Acharya for applicant;
Amit Verma for non-applicant.
Headnote:(1) Family Courts Act, 1984 -- Ss.7 and 8 -- Hindu Marriage Act, 1955 -- S.25 -- maintainability of execution proceeding -- decree for maintenance passed by civil Court -- affirmed by Supreme Court -- execution proceeding initiated by non-applicant before Family Court -- objection of not maintainability raised -- Executing Court has jurisdiction to execute decree which was passed prior to establishment of Family Court -- impugned order suffers from jurisdictional infirmity -- quashed -- non-applicant would be at liberty to institute proceeding before civil Court. [Para 8
(2) Family Courts Act, 1984 -- Ss.7(1)(b), (f) and 8 -- Hindu Marriage Act, 1955 -- S.25 -- jurisdiction to execute decree -- all suits or proceedings contemplated by section 7 of Act 1984 are original in nature which culminate into a decree -- since execution proceeding not covered in expression proceeding -- bar contained in section 8 of Act 1984 does not apply -- Executing Court has jurisdiction to execute decree.
Held : All the suits or proceedings contemplated by section 7 of the Act are original in nature, which culminate into a decree. Whether a Court which actually passed a decree loses its jurisdiction to execute the decree by reason of subject-matter thereof being transferred to the jurisdiction of another Court .... Since the execution proceeding is not covered in the expression "proceeding" as used in section 7 of the Act, therefore, the bar contained in section 8 of the Act does not apply to the fact situation of the case. Therefore, the Executing Court has the jurisdiction to execute the decree which was passed prior to establishment of Family Court. AIR 1956 SC 87 followed. 2013(III) MPWN 27 (SC), 2011(I) MPWN 128, (2013)9 SCC 491, AIR 1999 Ori. 81, II(1994) DMC 401, I(1998) DMC 110 (DB), I(1998) DMC 318 (DB) and (2013)9 SCC 491 distinguished.
¼1½ dqVqac U;k;ky; vf/kfu;e] 1984 & /kkjk 7 rFkk 8 & fganw fookg vf/kfu;e] 1955 & /kkjk 25 fu"iknu dk;Zokgh dh iks"k.kh;rk & flfoy U;k;ky; }kjk Hkj.k&iks"k.k dh fMdzh ikfjr dh xbZ & mPpre U;k;ky; }kjk laiq"V & vukosnd }kjk dqVaqc U;k;ky; ds le{k fu"iknu dk;Zokgh izkjaHk dh xbZ & iks"k.kh; u gksus dk vk{ksi mBk;k x;k & fu"iknu djus okyk U;k;ky; fMdzh dk fu"iknu djus ds fy, vf/kdkfjrk j[krk gS tks fd dqVaqc U;k;ky; dh LFkkiuk ds iwoZ ikfjr dh xbZ & vk{ksfir vkns'k vf/kdkfjrk ls lacaf/kr =qfV ls xzflr gS & vfHk[kafMr & vukosnd flfoy U;k;ky; ds le{k dkjZokbZ lafLFkr djus gsrq Lora= gSA ¼iSjk 8½
¼2½ dqVqac U;k;ky; vf/kfu;e] 1984 & /kkjk 7¼1½¼[k½] ¼p½ rFkk 8 & fganw fookg vf/kfu;e] 1955 & /kkjk 25 & fMdzh dk fu"iknu djus ds fy, vf/kdkfjrk & lHkh okn ;k dk;Zokfg;k¡ tks vf/kfu;e] 1984 dh /kkjk 7 }kjk vuq/;kr dh xbZ ewy izd`fr dh gS tks fd fMdzh dh ijkdk"Bk ij igq¡prh gS & pawfd fu"iknu dk;Zokgh vfHkO;fDr ^^dk;Zokgh** ds varxZr ugha gS & vf/kfu;e] 1984 dh /kkjk 8 esa varfoZ"V otZu ykxw ugha & fu"iknu djus dh vf/kdkfjrk j[krk gSA
vfHkfu/kkZfjr % lHkh okn ;k dk;Zokfg;k¡ vf/kfu;e dh /kkjk 7 }kjk vuq/;kr dh xbZ ewy izd`fr dh gS tks fMdzh dh ijkdk"Bk ij igq¡prh gSA D;k ,d U;k;ky; ftluss okLro esa ,d fMdzh ikfjr dh] fMdzh dk fu"iknu djus dh viuh vf/kdkfjrk mldh fo"k;&oLrq ds nwljs U;k;ky; dh vf/kdkfjrk dks varfjr gks tkus ij] [kks nsrk gSA---- pwafd fu"iknu dk;Zokgh vfHkO;fDr ^^dk;Zokgh** ds varxZr ugha gS tSlk fd vf/kfu;e dh /kkjk 7 esa iz;qDr fd;k x;k blfy, vf/kfu;e dh /kkjk 8 esa varfoZ"V otZu ekeys dh rF;xr fLFkfr dks ykxw ugha gksrsA blfy, fu"iknu djus okyk U;k;ky; fMdzh dk fu"iknu djus dh vf/kdkfjrk j[krk gS tks fd dqVaqc U;k;ky; dh LFkkiuk ds iwoZ ikfjr dh xbZA , vkb vkj 1956 ,l lh 87 vuqlfjrA 2013 ¼3½ e-iz- ohDyh uksV~l 27 ¼mPpre U;k-½] 2011 ¼1½ e-iz- ohDyh uksV~l 128] ¼2013½ 9 ,l lh lh 491] , vkb vkj 1999 mM+hlk 81] ¼1994½ 2 Mh ,e lh 401] ¼1998½ 1 Mh ,e lh 110 ¼[kaM U;k;ihB½] ¼1998½ 1 Mh ,e lh 318 ¼[kaM U;k;ihB½ rFkk ¼2013½ 9 ,l lh lh 491 izHksfnrA
1. The applicant in this revision preferred under section 115 of the Code of Civil Procedure has assailed the validity of the order dated 16.1.2014, by which, the objections raised by the applicant to the maintainability of the execution proceeding initiated by the non-applicant before the Family Court, Bhopal have been rejected. In order to appreciate the controversy involved in this revision, few facts need mention which are stated infra.
2. The marriage between the applicant and non-applicant was solemnized on 21.5.1983. Sometime in the year 1990, the non-applicant initiated a proceeding under section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the "1955 Act") in which, an ex parte decree was passed on 4.4.1990. Thereafter, the applicant in the year 1999 initiated the proceeding under section 13(1)(a) of the 1955 Act seeking dissolution of marriage, which was decreed vide judgment and decree dated 31.8.1999. The non-applicant fileld an appeal before the High Court. The High Court vide judgment and decree dated 2.9.2009 set aside the judgment and decree passed bythe trial Court and on the application of the non-applicant filed under section 25 of the Act granted an amount of Rs.5,00,000/- (Rupees Five lacs only) to daughter of the parties, namely, Neha towards education and marriage expenses. Being aggrieved, the applicant filed special leave petition before the Supreme Court filed review of the judgment dated 2.9.2009 before this Court which was dismissed on 11.8.2011.
3. Thereafter, the non-applicant filed an application under Order 21 rule 11 read with section 151 of the Code of Civil Procedure before the Principal Judge, Family Court, Bhopal. The applicant filed reply on 2.12.2013, and thereafter on 20.12.2013 filed an application under section 151 of the Code of Civil Procedure, bywhich, an objection was raised that the execution proceeding initiated before the Family Court is not maintainable as the decree was passed by the District Court. Thereafter, another objection was filed on 16.1.2014, inter alia, on the ground that the decree passed in favour of non-applicant is illegal. The trial Court vide order dated 16.1.2011 dismissed the objections raised by the applicant. Thereafter, the applicant filed an application for review before the Executing Court which was rejected by the Executing Court vide order dated 24.2.2014. The applicant filed a writ petition against the order dated 16.1.2014 passed by the Executing Court and on 5.4.2014, the aforesaid writ petition was dismissed as withdrawn with liberty to challenge the order dated 16.1.2014 in revision under section 115 of the Code of Civil Procedure. In the aforesaid factual background, the applicant has approached this Court.
4. Learned counsel for the applicant submitted that in view of section 37 of the Code of Civil Procedure, the execution proceeding initiated by the non-applicant before the Family Court is not maintainable. While inviting the attention of this Court to section 7 of the Family Courts Act, 1984 (hereinafter referred to as "Act"), it is argued that the Family Court has no jurisdiction to execute the decree as the expression "suit" or "proceeding" used in section 7 does not include execution proceeding. In support of aforesaid submission, learned counsel for the applicant has placed reliance on the decision of Supreme Court in the case of Josekutty Joseph v. Aniamma Thomas and another [AIR 2006 Kerala 337], and decision of this Court in the case of Arvind Singh Bhadouria v. Smt. Kunti Bhadouria [2011(I) MPWN 128=2010(4) MPJR 263].
5. On the other hand, learned counsel for the non-applicant has invited attention of this Court to section 37 as well as section 8 of the Family Courts Act and has submitted that the only Family Court has the jurisdiction to entertain the proceeding and the decision relied on by the counsel for the applicant in case of Josekutty Joseph (supra), has no application to the fact situation of the case. In s
