Rasish Kumar Panigrahi vs Kalpana Panigrahi

Arindam Sinha, J

The appeal was preferred by appellant-husband against judgment dated 6th February, 2017 of the Family Court. Grievance of appellant is that permanent alimony directed at ₹12,00,000/- was exorbitant and hence, interference sought. Pursuant to respondent-wife having notice of the appeal, she filed cross-appeal, exercising her right provided under rule 22 in order XLI, Code of Civil Procedure, 1908.

On 4th April, 2024, Mr. Das, learned advocate appearing on behalf of appellant-husband had filed memo dated 2nd April, 2024, for dropping the proceeding in appeal. He had submitted, there was direction by impugned judgment for payment of ₹12,00,000/- as permanent alimony. The deposit was made. In the circumstances, nothing remains for adjudication, which was why the memo had been filed. Compliance had also been recorded by the Family Court on order dated 14th March, 2019, dropping the execution proceeding, to dispose of it.

Mr. Mohanty, learned advocate appearing on behalf of respondent-wife had submitted on 4th April, 2024 that his client having had duly filed cross-appeal, regarding quantum of permanent alimony directed, it required adjudication irrespective of appellant-husband not wanting to prosecute the appeal. He had obtained adjournment for relying on authority regarding his client being entitled to prosecute, where appellant wanted to withdraw.

Mr. Mohanty relies on judgment dated 4th July, 2023 of the Supreme Court in, inter alia, Civil Appeal arising out of Special Leave Petition (C) no.26491 of 2018 (Dheeraj Singh v. Greater Noida Industrial Development Authority and others), paragraph 17.

We reproduce below sub-rule (4) in rule 22 of order XLI.

“(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.”

(emphasis supplied)

In Dheeraj Singh (supra), Greater Noida Industrial Development Authority was appellant before the High Court, as appears from the judgment. We reproduce below paragraphs 7, 8 and 22 from it.

“7. As against this, the Respondent Greater Noida filed an appeal in the High Court, to which the appellants herein filed their cross appeals seeking a further enhancement.

Subsequently the High Court, vide order and judgment dated 04.01.2017, confirmed the compensation determined by the Learned District Judge. It is the contention of the appellants herein that the High Court, while passing its judgment, did not consider the cross objections filed by them.

xxx xxx xxx

The abovementioned discussions and judgments, when contextualized to the present case, would show that the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judgment in appeal, we are of the considered opinion that the matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during appeal by the appellants herein. Accordingly, the present appeals are therefore allowed to such an extent.”

(emphasis supplied)

It is sufficient for us to say that sub-rule (4) under rule 22 in order XLI stands attracted in this case because appellant-husband wants to withdraw his appeal or not prosecute it. The two instances given in sub-rule (4), wherein respondent in an appeal has right of adjudication of his cross-appeal filed is withdrawal or dismissal for default of the appeal.

Considering appellant-husband does not want adjudication of his appeal, we must decide on the cross-appeal of respondent-wife. For the purpose, the sequence of events becomes important.

(i) The civil proceeding was instituted in year 2014. In it, there was counter claim filed by respondent-wife. She had verified the counter claim on 6th January, 2015. Relevant prayers in the counter claim are reproduced below.

“a) Dismiss/Reject the petition of the Petitioner.

b) Pass a decree for judicial separation of the parties in the case.

c) Grant maintenance of Rs.20,000/- (Rupees twenty thousand only) per month as maintenance from the date of counter claim.

d) Direct the Petitioner to return the net cash of Rs-8,00,000/-(Rupees eight lakhs only) 17 tolas of gold ornaments and house hold articles of the Respondent which she took at the time of her marriage with out alienate the same.

e) If Hon’ble court deem to pass a decree of divorce then award appropriate amount as per monthly alimony for the Respondent but directing to return above sthree dhana properties.”

(emphasis supplied)

(ii) As aforesaid, the civil proceeding was dealt with on impugned judgment dated 6th February, 2017, dissolving the marriage and directing payment of permanent alimony at ₹12,00,000/-.

(iii) Soon thereafter on 15th May, 2017 respondent-wife launched execution by EP no.21 of 2017.

(iv) Learned advocate for respondent-wife entered appearance in the appeal on 10th October, 2017. The cross-objection was filed by her on 11th December, 2017.

(v) As also aforesaid, by order dated 14th March, 2019, the execution proceeding was dropped. Text of the order is reproduced below.

“The record is put up today on the strength of Advance petition filed on behalf of judgment debtor. The learned Advocate filed a petition mentioning therein that the petitioner-judgment debtor has paid a sum of Rs. 12,00,000/-(Rupees Twelve lakh) to the decree holder towards permanent alimony. Such payment was made in the shape of bank draft vide no.596532 dated 22.02.2019. The decree holder has made an endorsement with her signature accepting receipt of the said bank draft at the body of order sheet of this case.

In view of above fact relating to compliance of Judgment and order passed in C.P. No.100/2014 dated 06.02.2017. I preferred to drop the proceeding. Accordingly, the case is disposed of to the full satisfaction of the decree holder.”

(emphasis supplied)

Mr. Mohanty hands up petition dated 22nd February, 2019 of appellant-husband, filed in the Family Court tendering/depositing ₹12,00,000/- with prayer for necessary order. The petition bears endorsement made on behalf of respondent-wife saying she received the amount with objection but she had no objection to the execution case being closed. It bears signature of respondent-wife and her advocate.

Facts stated in last preceding paragraph clearly demonstrate respondent-wife had accepted impugned judgment and had filed for execution, soon after its pronouncement and the decree drawn up. It was conduct of her that corresponded with her accepting the judgment on prayer (e) in her counter claim and consequent thereto.

Subsequent conduct of respondent-wife in accepting the permanent alimony in the executing Court on 11th March, 2019 but with objection, not affecting closure of the execution proceeding is further indication that she had accepted impugned judgment. In it there was direction for payment of permanent alimony at ₹12,00,000/-. Respondent-wife had sought assistance of Court to enforce the decree. Upon her accepting the decretal due, there had to be and was execution, discharge and satisfaction of the decree. This was confirmed by her and her advocate, in endorsing that she had no objection to the execution case being closed. This further conduct is also in line with her prayer (e) in the counter claim, as dealt with by the Family Court on impugned judgment. It was only then that the executing Court dropped the proceeding.

Mr. Mohanty submits further, the acceptance was in a situation of dire need. His client was compelled to accept the money knowing that her claim for enhancement was pending in the cross appeal filed by her. We are unable to view aforesaid conduct of respondent-wife from the perspective as submitted. It is not unreasonable to expect that if she was aggrieved, she would have first assailed impugned judgment on not fully allowing her counter claim prayer (e). Instead she filed for execution and thereupon, on receiving notice of appeal, preferred cross objection.

Mr. Mohanty submits, the Family Court by impugned judgment did not at all consider his client’s counter claim, except for making a mention. On perusal of paragraphs 3, 4 and 11 in impugned judgment we find that the Family Court dealt with the counter claim. It appears, the direction for payment of permanent alimony was in allowing prayer (e) in the counter claim, as to the Court deemed fit and proper. In doing so the Family Court exercised discretion, available to it under section 25 in Hindu Marriage Act, 1955, which enables the Court to direct payment for maintenance and support at such gross or monthly periodical sum. The Court awarded permanent alimony being a gross sum and answered question (ii) framed in paragraph-4 in the judgment.

We find respondent-wife had elected to petition for execution instead of preferring appeal against impugned judgment. As such and after she obtained execution, she cannot prosecute a grievance, not made on aforesaid election, simply because appellant-husband had preferred appeal, thereby giving birth to her right to file cross appeal. Where respondent-wife had exercised her choice of remedy to be enforcement of the direction for permanent alimony in impugned judgment, by execution, it will be inequitable to thereafter proceed to find on her grievance in cross appeal, which she had omitted to make in choosing her aforesaid remedy.

The cross appeal is dismissed.

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