Court No. - 83
Case :- APPLICATION U/S 482 No. - 9148 of 2021 Applicant :- Shameem Ahmad Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Karunesh Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Karunesh Pratap Singh, learned counsel for applicant and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging order dated 23.02.2021 passed by Additional Principle Judge, Family Court-2, Gorakhpur in Execution Case No.695 of 2020, (Saida Parveen Fatima and Another Vs. Shameem Ahmad), under Section 128 Cr.P.C., Police Station- Campierganj, District- Gorakhpur.
Record shows that opposite party-2, Smt. Saida Parveen Fatima wife of applicant along with her minor daughter filed an application under Section 125 Cr.P.C. claiming maintenance from applicant. Same was registered as Case No.378 of 2006, (Smt. Saida Parveen Fatima and Another Vs. Shameem Ahmad). Aforesaid case was allowed vide judgement and order dated 07.10.2008. By means of aforesaid judgement and order dated 07.10.2008, applicant was directed claim maintenance to opposite party-2 at the rate of Rs.1,500/- per month and to opposite party-3 at the rate of Rs.700/- per month, i.e., Rs.2,200/- per month.
Subsequently, opposite parties-2 and 3 filed an application under Section- 127 Cr.P.C. seeking enhancement of maintenance payable by applicant. This application came to be registered as Case No.444 of 2012, (Smt. Saida Parveen Fatima and Another Vs. Shameem Ahmad). Ultimately, upon contest, aforesaid case came to be allowed vide judgement and order dated 15.10.2019 passed by Additional Principle Judge, Family Court No.2, Gorakhpur. Consequently, applicant was directed to claim maintenance at the rate of Rs.3,500/- per month to opposite party-2 and at the rate of Rs.3,000/- to opposite party- 3, i.e., Rs.6,500/- per month.
Muin Ahmad, minor son of applicant through his mother, Saida Parveen Fatima filed an application dated 01.09.2012 under Section 125 Cr.P.C. claiming maintenance at the rate of Rs.3,000/- per month. Same was registered as Case No.644 of 2012, (Muin Ahmad Vs. Shamim Ahmad). Aforesaid case came to be allowed vide judgement and order dated 15.10.2019 passed by Additional Principle Judge, Family Court-II, Gorakhpur.
As no amount of maintenance was paid by applicant pursuant to judgement and order dated 15.10.2019 passed in Case No.444 of 2012, (Smt. Saida Parveen Fatima and Another Vs. Shameem Ahmad) under Section 127 Cr.P.C., opposite parties-2 and 3 filed an Execution Application dated 12.11.2020. Same was registered as Execution Case No.695 of 2020, (Saida Parveen Fatima and Another Vs. Shameem Ahmad), under Section 128 Cr.P.C. In aforesaid execution case, court concerned has issued recovery warrant (for recovery of Rs.4,54,600/-) against applicant vide order 23.02.2021. Upon failure to pay the due amount by applicant, it was provided that applicant be arrested and produced before Court.
Feeling aggrieved by order dated 23.02.2021, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
Learned counsel for applicant contends that since there is no stay order is operating against judgement and order dated 15.10.2019 rendered in Case No.444 of 2012, (Smt. Saida Parveen Fatima and Another Vs. Shameem Ahmad), applicant cannot absolve himself of the liability arising out of aforesaid judgement and order. He, therefore, submits that applicant is ready to pay the amount but in instalments as applicant is simply working on the post of Technician.
Per contra, learned A.G.A., however, does not oppose the equitable prayer made by learned counsel for applicant.
Considering the bona fide expressed by learned counsel for applicant, it is hereby provided that amount of Rs.4,54,600/- shall be paid by applicant to opposite party-2 in two equal instalments. The first instalment shall be payable on or before 30.10.2021. The second instalment shall be paid on or before 01.12.2021. The instalments shall be paid by means of a bank draft drawn in favour of opposite party-2 and shall be submitted before court below on or before the due date. Recovery proceedings pending against applicant shall remain stayed till 01.12.2021. However, in case of default, interim protection granted to applicant shall stand automatically vacated and application shall stand dismissed without further reference to the Court.
With the aforesaid direction, this application is finally disposed of.
Order Date :- 24.9.2021 Saif