IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53006 OF 2018 (GM - FC) BETWEEN:
Krishna Kumar, S/o Shivaram P., Aged about years, R/at D-1706, No.9, Binnyston Garden, KP Agrahara, Magadi Road, Bengaluru – 560 023.
(By Smt. S. K. Prathima, Advocate) 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, Bengaluru – 560 096.
(By Smt. Geeta Menon, Advocate for … Petitioner … Respondent Smt. Anandita S., Advocate for C/R) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the orders dated 29.10.2018 vide Annexure – J passed by the Principal Family Judge, Bangalore on IA dated 03.04.2017 filed by the petitioner herein above in Ex Case No.182/2016 and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Smt. S. K. Prathima, learned counsel for the petitioner.
Smt. Geeta Menon, learned counsel for Smt. Anandita S., learned counsel for the respondent.
Petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. In this petition, the petitioner inter alia has assailed the validity of the order dated 29.10.2018 passed by the Principal Judge, Family Court, Bengaluru in execution proceeding, by which an objection under Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for short) has been rejected.
3. Facts giving rise to filing of the writ petition briefly stated are that the parties to this petition had jointly presented a petition under Section 13-B of the Hindu Marriage Act, 1955. The aforesaid petition was accepted vide judgment and decree dated 10.07.2015. In paragraph 8 of the judgment, the Family Court took note of the settlement arrived at between the parties with regard to the cash amount towards future maintenance. However, the operative portion of the decree reads as under:
“The petition filed by the petitioners under Section 13-B of the Hindu Marriage Act, 1955 is allowed.
The marriage of the petitioners solemnized on 01.03.2002 at Kalyani Kala Mandir, Bangalore is dissolved by decree of divorce on and from this day.
The print and electronic media are prevented from publishing any matter connected with this case.
Draw decree accordingly.”
Since the petitioner failed to comply with his obligation as indicated in paragraph 8 of the judgment, respondent initiated execution proceeding. In the aforesaid execution proceeding, the petitioner filed an objection under Section 151 of the Code. The aforesaid objection has been rejected by the Family Court in execution proceeding by the impugned order dated 29.10.2018. In the aforesaid factual background, the petitioner has approached this Court.
4. Learned counsel for the petitioner has raised singular contention that the operative portion of the decree does not mention about the payment of any amount to the respondent and therefore, the Executing Court cannot go behind the decree. However, the aforesaid aspect of the matter has not been appreciated by the Executing Court.
5. On the other hand, learned counsel for the respondent submitted that no such objection had been raised before the Executing Court and for the first time, such objection has been raised before this Court. It is further submitted that respondent be granted liberty to move appropriate application seeking amendment of the decree.
6. I have heard learned counsel for the parties and have perused the records. It is trite law that Executing Court cannot go behind the decree. Though in paragraph No.8 of the judgment, the Family Court has referred to the amount of maintenance, which is payable to the respondent, however, the same has not been mentioned in the operative portion of the order, which has been reproduced supra. However, the Executing Court has failed to appreciate the aforesaid aspect of the matter and has rejected the objection preferred by the petitioner. The impugned order dated 10.07.2015 passed by the Executing Court is hereby quashed. However, liberty is granted to the respondent to move an appropriate application seeking amendment of the decree, if so advised.
7. Needless to state that in case, application is filed by the respondent, the same shall be dealt in accordance with law.
Accordingly, writ petition is disposed of.
Sd/- JUDGE Mds/-
AAJ:
11.04.2019 W.P.No.53006/2018 ORDER ON ‘BEING SPOKEN TO’ None for the petitioner.
Smt.Anandita.S, learned counsel for respondent.
Learned counsel for the respondent has filed a memo seeking correction of the typographical error which has crept in the order dated 19.03.2019.
In paragraph No.6 of the order dated 19.03.2019 passed in W.P.No.53006/2018, the date of the impugned order shall be read as “29.10.2018” instead of “10.07.2015.”
This order shall be read in conjunction with the order dated 19.03.2019 passed in W.P.No.53006/2018.
Sd/- JUDGE VMB