Kamal Kishore Ashopa vs State of Rajasthan and Another

Prakash Tatia, J.—Heard learned Counsel for the appellant. The appellant is aggrieved against the order of DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. the Family Court, Jodhpur dated 20.12.2005 whereby the Family Court stayed the divorce petition proceedings on account of non-payment of maintenance amount by the appellant/petitioner to the respondent No. 2, wife of appellant. The said order was challenged by the appellant by filing writ petition No. 1440/2006 which was dismissed by this Court vide order dated 7.2.2007 after observing that the trial court has erred in favour of the petitioner in only staying the proceedings, which were otherwise required to be dismissed for non-payment of the amount in view of the Division Bench judgment of this Court in Jaishanker v. Chandresh reported in 1980 WLN UC 82. However, the learned Single Judge also did not dismiss the divorce petition of the appellant even after observing as stated above. Not satisfied with the above order rather say aggrieved against the order of learned Single Judge dated 7.2.2007 passed in writ petition No. 1440/2006, the appellant has preferred this special appeal. We would like to narrate the facts of the case in brief.

The divorce petition was filed by the appellant against his wife (respondent No. 2) in the Family Court as back as in the year 2001. In the said divorce DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. petition, an application u/s 24 of the Hindu Marriage Act, 1955 (for short ''the Act of 1955'') was submitted by the respondent No. 2 on 20.2.2002 and she claimed maintenance at the rate of Rs. 1,000/- per month for herself and litigation costs of Rs. 7,500/-. The said application was contested by filing detailed reply by the appellant in the Family Court stating therein that the appellant is advocate and also oath commissioner but he has no sufficient income. His father is retired teacher and is getting pension of Rs. 4000-4500/-. The appellant also took the plea that the respondent No. 2 has her own income and she is in position to maintain herself. After hearing the arguments, the Family Court vide order dated 27.9.2002 allowed the respondent No. 2''s application filed u/s 24 of the Act of 1955 and awarded a small amount of Rs. 500/- per month as maintenance to the respondent No. 2 and also ordered to pay Rs. 2,000/- as litigation costs to the respondent No. 2. Admittedly, against the order dated 27.9.2002, the respondent No. 2 could not get a single penny even after passing of more than 5 years by now.

It is interesting to note that none else than the appellant, who in fact is a judgment debtor in the proceedings u/s 24 of the Act of 1955, DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. himself submitted an application before the Family Court under Order 21 Rules 30 & 31 and Section 151 CPC read with Section 18 of the Family Courts Act. The appellant stated that the order has been passed against him for payment of Rs. 500/- per month to his wife and for payment of Rs. 2,000/- as litigation costs. It is submitted that since the appellant is a very poor person and has negligible income, therefore, he is not in a position to pay the awarded amount in cash. Therefore, he is offering his scooter No. RJ-19 7M 7121 which may be attached and sold and the amount recovered from the sale of the scooter may be paid to the respondent against her maintenance. He also submitted a copy of the registration certificate of the scooter to show that the scooter is registered in his own name, obviously to say that he has right to sell it. The appellant further stated that in case, the total claim of the respondent No. 2 is not satisfied by the sale proceeds of the scooter of the appellant, then he is offering his gold chain and one gold ring which also may be attached and those articles may also be sold out so that the maintenance amount of the respondent No. 2 may be paid.

At the outset, this Court has no hesitation in DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. observing that the practice of offering properties by the judgment debtor in the execution petition for sale, is required to be examined carefully by the courts of law because of the reason that any prudent man will not do so as he himself can sell the property as a prudent man and get the best price of the property but when a person offers the property to the Court and seek intervention of the Court for sale of his own property, then this fact itself, ordinarily is sufficient to create doubt about the intention of such person whose act is not as of a person of ordinary prudence in the matter of getting the best price for his own property. Then, first question required to be put to such person is "why he himself is not selling the property?" If the trial court would have asked this question to the appellant or event to itself, then the matter would not have reached to "no relief to the person to whom the appellant and the Court both wanted to give". Then, all surrounding circumstances are required to be seen carefully to find out whether that offer is bonafide or not and whether that offer is to deliberately delay the recovery proceedings in the Court so as to deny the benefit of order/judgment/decree to the holder of order or decree.

Here in this case, the plea of the appellant in DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. arguments before this Court, is that the respondent No. 2 herself claimed the scooter RJ 19 7M 7121 as her stridhan and, therefore, the appellant bonafidely informed the Court that the appellant wants to dispose of and sell the scooter to satisfy the claim of the respondent No. 2. If it is true, than the appellant offered the disputed property for sale. From the contents of the application filed by the appellant under Order 21 Rule 30 & 31 CPC, we do not find this averment of the appellant in his application. Contrary to it, in the application, he not only claimed the scooter to be his own but also submitted the copy of the R.C. of the scooter. Be it as it may be, nothing about the gold chain and gold ring has been averred that why those articles were offered to the Court for attachment?

We would like to recapitulate the provisions of law referred to by the learned Counsel for the appellant and that is Section 28A of the Act of 1955 which provides that all decrees and orders made by the court in any proceeding under this Act (under the Act of 1955) shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. enforced. Therefore, and not disputed by the learned Counsel for the appellant, the amount awarded u/s 24 of the Act of 1955 can be recovered by the Court by following the procedure provided for the execution of the decree by the civil court under Order 21 CPC.

Order 21 CPC very specifically provides how the money under the decree can be paid by the judgment debtor. Order 21 Rule 1(1) CPC has Clauses (a), (b) and (c) providing that all money payable under a decree shall be paid as per Clause (a), either by depositing in the Court whose duty is to execute the decree, or sent to that Court by postal money order or through a bank; or, as per Clause (b), out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing. And in addition to the above, the payment to satisfy decree or order can be made, as the Court which made the decree directs, as provided in Clause (c). In case, the payment is made out of the Court, then payment is required to be certified as per Order 21 Rule 2 CPC. As per Order 21 Rule 2 Sub-clause (2A), no payment or adjustment of money under decree or order can be recorded at the instance of judgment debtor unless conditions (a), (b) or (c) under Order 21 Rule 2 DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. (2A) CPC are satisfied. Further, as per Sub-rule (3) of Rule 2 of Order 21, no payment or adjustment, which has not been certified or recorded as required by Order 21 Rules 1 and 2 CPC can be recognised by any court executing the decree.

There is no provision by which a judgment debtor can command and dictate the Court to attach the property offered by the judgment debtor and ask the Court to sale the property of the judgment debtor for payment to the decree holder. The obvious reason for not providing such type of procedure is that if there is bonafide of judgment debtor in such offer, then as a prudent man, he himself could have sold the property to fetch maximum market price of the property and would not have sought intervention of the Court for sale of his own property. The litigation is one of the factor in the matter of sale of property of the judgment debtor which can lower the market value of the property. Such tendency of offering the property to the Court for sale is increasing because of the various reasons which may include the cunningness of the judgment debtor who knows that in court sale, there may be several objections and for deciding those objections, years may pass and by that, the decree holder may not get the benefit of the decree and the DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. judgment debtor also may not loose his property. One of the object of such litigant may be that even if any property of the judgment debtor may be put on stake but the rival party should not get the fruits of the decree. There may be possibility that there is some dispute regarding title of the offered property and to involve that property in the litigation, offer is made. Be it as it may be, the question here is that the trial court vide order dated 2.6.2003 held that the scooter in question is not the joint property of the parties and after rejecting the respondent No. 2''s contention, directed to attach the said scooter for the purpose of sale. As observed above, while doing so, the trial court did not look into the relevant provisions of Order 21 CPC. Be it as it may be, undisputedly, the respondent No. 2 is claiming maintenance amount and the appellant is admitting his liability towards the respondent No. 2. The appellant wants to pay the amount and the respondent No. 2 wants to recover the amount and it is the technicality of law only which has been till now used by the appellant, who himself is advocate, in denying the benefit of even maintenance to a lady for good 5 years, then what is the purpose for granting maintenance if it cannot be given to the needy person DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. in time? And the gravity increases when one party is ready to pay and another party is ready to receive the amount, yet the Court did not look into the aim and object of the appellant in opting for this unusual mode for payment of money to the respondent.

At this juncture, we would like to read Order 21 Rule 30 CPC in which the appellant submitted application offering his property for attachment. Before going through Rule 30, we may notice that as per Rule 11, a decree holder can move application in writing or even oral before the court who is competent to execute the decree and Rule nowhere provides that a judgment debtor can submit application for getting the execution against himself. How the application which is submitted by the decree holder is required to be dealt with, is given in subsequent provisions under Order 21 which includes Rule 30. Rule 30 provides that every decree for payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both. Therefore, this one provision provides for attachment and sale of the property of the judgment debtor as well as for detention of judgment debtor in civil prison. DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. The appellant who is advocate by profession and as per learned Counsel for the appellant, has 10 years standing, offered his property under Rules 30 and 31. The procedure for attachment of the property is provided under Rule 41 and subsequent Rules and longest is the Chapter of execution in CPC is the Order 21 wherein the provision for raising all sorts of objections have been provided against execution of decree and attachment of property and if the property is attached, then against the sale of property and if sale is effected, then against legality and validity and even on the ground of defect in procedure of sale of property etc. and thereafter, appeal or revision and now writs to challenge the orders of the executing courts. Therefore, Order 21 CPC appears to be most benevolent provision for the judgment debtor and harshest provision for any decree holder and the Order 21 CPC takes care of interest of only defaulters. We would like to observe here that entire CPC has been amended recently in the year 2002 to project that the procedure in civil courts has been changed radically so as to obtain a decision from the court of law within a period of one year (ignoring the pending case in the courts) from the time of filing even civil DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. original suit and for that purpose, some time has been fixed for every step to be taken in the trial. We are in know that that radical change in short time has shown its decorative value only.

The appellant has placed on record the attachment warrants issued for attachment of appellant''s scooter for which the respondent No. 2 did not cooperate according to the appellant and, therefore, the scooter has not been sold by the Court. The fact remains is that the respondent No. 2 herself could not get anything in her maintenance. Respondent No. 2 submitted an application for stay of divorce petition before the Family Court, Jodhpur on the ground that the appellant did not pay the maintenance amount to the respondent no.2 but that application was rejected by the court by order dated 2.6.2003, because of pendency of recovery proceedings referred above. The proceedings for said attachment is going on parallely and the respondent No. 2 submitted another application before the trial court on 4.2.2004 stating therein that since the appellant has not paid any amount of maintenance in pursuance of the order dated 27.2.2000, therefore, the proceedings of divorce petition may be stayed which was contested by the appellant by filing detailed reply and the trial court merely on the basis of the plea that DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. the proceedings for recovery of the amount are going on, therefore, the proceedings of divorce petition cannot be stayed and this order was passed on 28.7.2004. Again on 26.9.2005, the respondent No. 2 submitted third application for staying the proceedings of divorce petition. On this application, the trial court ordered on 20.12.2005 that the proceedings in the divorce petition cannot proceed as the appellant has not paid any maintenance amount. Being aggrieved against the order dated 20.12.2005, the aforesaid writ petition was filed which was also dismissed vide order dated 7.2.2007. Hence, this special appeal. The contention of the learned Counsel for the appellant is that the divorce petition is pending since 2001 and its proceedings cannot be stayed merely on the ground that he did not make payment of maintenance when he has offered his property for sale because of the reason that he has no income and the amount can be recovered by sale of the property. In the alternative, learned Counsel for the appellant submitted that the appellant may be permitted to pay the maintenance amount in installments.

Normally, the prayer for installments would have been appealable to Court in almost all the matters in DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. which the payment is in terms of money to the other party and the judgment debtor is poor. The maintenance itself is a periodical payment and is an amount awarded by the court after considering the facts of the case and if the appellant would have paid the amount in time, it would have been a very meagre amount of Rs. 500/- per month. The contention of the appellant that he had no money when the order was passed and he offered his property in the facts of the case, cannot be considered to be bonafide because of the reason that it is highly improbable that a married person would not have Rs. 500/- per month to spare for his spouse and in a case, where the husband is not earning, even then the courts normally decline in interfering in the matter where the amount of maintenance has been awarded in favour of the lady spouse. The appellant knowingly married with the respondent No. 2 and was knowing it well that in case, there will be no dispute, he will have to provide all livelihood for his wife and simply because of some dispute, he is not supposed to say that he lost all his those means by which he could have maintained his wife provided that she would have lived with him.

We are constrained to say that the amount of Rs. 500/- is required to be judged in the present DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. economic situation and not as an amount as mountain for the appellant. We found from the earlier application which was submitted by the respondent No. 2 that by that time, the total arrears were only Rs. 8,000/- and that arrears became because of the fault of the appellant to the extent of Rs. 8,000/- and he himself did not choose to pay the amount in installments i.e. at the rate of Rs. 500/- per month. The appellant, an advocate, failed to notice the observation of the learned Single Judge who clearly observed that the trial court was more benevolent towards the appellant by not rejecting the divorce petition itself for non-payment of the maintenance amount. We are in full agreement with the above view expressed by the learned Single Judge and this Court would have rejected the divorce petition itself by invoking supervisory power u/s 151 CPC and being court of record but that may be against the interest of both the parties in a matter of their family life and in case, there is possibility of their settlement and living together, that will be ruined and in case, it is inevitable and ground is made out for divorce, then their living separately will be ruined. Because of this reason only, keeping a humanitarian approach, this Court is not rejecting the divorce petition of the appellant and gives him one opportunity DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. to pay the entire arrears to the respondent No. 2 within a period of two months in two installments � the first installment to be paid by 18.8.2008 and the second installment by 17.9.2008. The proceedings may be started on payment of first installment of total half amount and for which the appellant shall pay the amount by demand draft to the respondent No. 2 or shall deposit the same in the Family Court with due notice to the respondent No. 2 and the court may give notice of hearing to the respondent No. 2 if already date is not fixed.

In case of non-payment of the maintenance amount, as ordered by the trial court in the manner stated above, the divorce petition of the appellant being only a luxury litigation, shall stand dismissed without reference to the Court. The appellant shall also pay the periodical amount of maintenance to the respondent No. 2 by 15th date of each succeeding calender month. In view of the above discussion, the appeal of the appellant is disposed of with concessions given to the appellant as mentioned above.