Heard learned counsel for the applicant and learned AGA for the State as also perused the record.
The present application U/s 482 Cr.P.C. has been filed to quash the orders dated 27.10.2016 and 25.01.2018 passed by the Principal Judge, Family Court, Mirzapur in Case No. 297 of 2016 (Arem Fatima and another Vs. Saiyad Azhar Ali).
By the order dated 27.10.2016, the learned court below has issued recovery warrant against the applicant during pendency of his application filed under Section 126 (2) Cr.P.C., in pursuance of the exparte order passed by the learned Principal Judge, Family Court, Mirzapur dated 28.01.2016. By it the said court had awarded monthly maintenance allowance @ Rs. 3,000/- per month to the opposite party no.2 and @ Rs. 1,000/- per month to the opposite party no.3, from the date of that order.
Learned counsel for the applicant submits that applicant had filed a recall application on 04.11.2016, which has remained pending for sufficiently long period of time and the recovery proceeding pursuant to the exparte award has been initiated against the applicant. He further states that during the pendency of recall application, recovery proceedings against the applicant may be stayed.
Having considering the argument advanced by learned counsel for the applicant, it does appear that the recall application filed by the applicant has remained pending for sufficiently long period of time. At the same time, as on date, total a sum of Rs. 1,08,000/- is due against the applicant under the exparte order dated 28.01.2016 and the opposite party nos. 2 and 3 have not received a single Rupee towards maintenance allowance, though they had filed the application under Section 125 Cr.P.C. on 26.02.2015 and the same was allowed by the exparte order dated 28.01.2016.
Considering the above, the present application is disposed of with the following directions:
(i) The applicant shall deposit a sum of Rs. 54,000/- before the court below on or before 30.04.2018.
(ii) Applicant shall further furnish adequate security other than cash or bank guarantee to the extent of Rs. 54,000/- on or before 16.04.2018, to the satisfaction of the learned court below.
(iii) During the pendency of recall application, the applicant shall further continue to pay on account of maintenance allowance @ Rs. 3,000/- per month to the opposite party no.2 and @ Rs. 1,000/- per month to the opposite party no.3 on 10th day of every month beginning from April, 2018 onwards.
Subject to the aforesaid compliance being made by the applicant, the application for recall of the exparte order filed by the applicant, may be decided as expeditiously as possible, preferably within a period of three months from the date of compliance being made on the conditions no. (i) and (ii).
Subject to the compliance being made on the aforesaid conditions, no recovery shall be made against the applicant for a period of four months from today or till the disposal of recall application, whichever is earlier, It is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court.
Also, in the event of the recall application being rejected, the amount of Rs. 54,000/- deposited by the applicant shall be released to the opposite parties in proportion to their claims and the balance arrears be recovered and paid over to them in accordance with law, from amongst others, the security furnished by the applicant in pursuance of this order.
It is clarified, in the event of the recall application being allowed by the court below the issue of quantification of maintenance allowance would be considered by that court afresh, in accordance with the evidence, if any, that may come on record. However, in any case, no recoveries may be made from the opposite parties in pursuance of such re-quantification of maintenance allowance.
The present application is disposed of.
Order Date :- 30.3.2018 Lbm/-