IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.15402 OF 2019 (GM-FC) BETWEEN:
KRISHNA KUMAR S/O SHIVARAM P AGED ABOUT 47 YRS R/AT D-1706, NO.9 BINNYSTON GARDEN K P AGRAHARA, MAGADI ROAD BANGLAORE-560 023.
(BY SMT. PRATHIMA S.K. ADV.) AND:
ANU PRABHAKAR D/O LATE M V PRABHAKAR AGED ABOUT 38 YEARS R/AT NO.93, ADITYA BHEL OFFICERS COLONY 24TH MAIN ROAD, NANDINI LAYOUT BANGALORE-560 096.
(BY SMT. SUKRUTHA R, ADV.) … PETITIONER … RESPONDENT - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.47/2017 PENDING BEFORE PRINCIPAL FAMILY JUDGE AT BANGALORE. SET ASIDE THE ORDERS DTD:29.10.2018 VIDE ANNEXURE-J PASSED BY THE PRINCIPAL FAMILY JUDGE AT BANGALORE ON IA NO.2 DTD:21.2.2017 FILED BY THE PETITIONER HEREIN ABOVE IN O.S.NO.47/2017 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Smt.Pratima S.K., learned counsel for the petitioner.
Smt.Sukrutha R., learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 29.10.2018 passed by the Family Court by which the application filed by the petitioner under Section 151 of the Code of Civil Procedure, 1908, to stay the operation of the judgment and decree dated 10.07.2015 passed in M.C.No.464/2014 has been dismissed.
4. Facts giving rise to the filing of the petition briefly stated are that the marriage between the parties was performed on 01.03.2002. With mutual consent of the parties on 10.07.2015 vide judgment and decree passed in M.C.No.464/2014, their marriage was dissolved. Thereafter, decree was passed on 14.07.2015. The respondent filed an execution petition on 25.10.2016. Thereupon, after a period of merely 1½ years, petitioner filed O.S.No.47/2017 against the respondent – wife to declare the judgment and decree in M.C.No.464/2014 as void ab initio. The petitioner also filed an application under Section 151 of the Code of Civil Procedure in the civil suit to stay the operation and execution of the judgment and decree. The respondent thereupon filed an objection to the aforesaid interlocutory application. The application filed by the petitioner has been rejected by the Family Court by an order dated 29.10.2018. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that in the execution proceedings, an application for amendment of the decree was filed which was entertained by the executing court and the decree was amended and thereafter execution proceedings have been proceeded against the petitioner. It is further submitted that the consent decree was obtained by playing fraud on the petitioner and therefore, during the pendency of the civil suit, the proceedings in execution case should be stayed.
6. On the other hand, learned counsel for the respondent has supported the order passed by the Family Court.
7. I have considered the submissions made by learned counsel on both the sides and have perused the record. Admittedly, the respondent had married one Raghu Mukherjee on 25.04.2016. The aforesaid marriage was widely announced and published in media. The petitioner was well aware of the respondent’s marriage with aforesaid Raghu Mukherjee. The respondent sent an e-mail on 27.06.2016 informing the petitioner that he was due to make the amount of permanent alimony as per the consent decree. However, the petitioner sent a reply seeking time to make the amount. The petitioner kept quite for a period of 1½ years and after service of summons of execution petition, has filed a suit seeking declaration stating that the judgment and decree passed in M.C.No.464/2014 is void ab initio on the ground of fraud. The Family Court, while rejecting the application for stay of the judgment and decree passed in M.C.No.464/2014, has held that filing of the application lacks bonafide and is nothing but abuse of process of the Court as the suit has been filed after the petitioner came to know about the re-marriage of the respondent. The aforesaid application seeking stay has therefore been rejected.
8. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
9. In view of aforesaid enunciation of law, the impugned order neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. Therefore, I do not find any merit in the petition. The same fails and is dismissed.
Sd/- JUDGE RV