DILIP GIRDHAR CHAUDHARI Vs. NIRABAI DILIP CHOUDHARI

JUDGEMENT

(1.) PRESENT petitioner, is the husband. The respondent wife has filed Special Civil Suit No. 169 of 1997 for maintenance in the Court of learned Civil Judge, S. D. , Jalgaon on 9-3-2000. The learned Civil Judges, S. D. was pleased to allow the interim maintenance in favour of the wife and daughter at the rate of Rs. 500/- each. The interim maintenance is ordered to be paid from the date of application i. e. 24-4-1997. Consequently an amount of Rs. 57,000/- has become due by the end of January, 2002.

(2.) ON 22-1-2001, an application was filed on behalf of the petitioner pointing out that the defendant has not complied with the order of interim maintenance. Present petitioner filed say stating that he has filed the revision petition before the High Court challenging the order of interim maintenance and the revision was fixed for admission hearing on 23-4-2001. On 8-3-2001, the learned Judge passed an order directing the defendant to clear the arrears of interim maintenance as ordered, latest by 10th of April, 2001. Said order also cautioned him that in case of failure to comply, the Court may take an action against him as may be deemed fit and proper. As on the date of this order i. e. 8-3-2001, the amount of Rs. 47,000 was due. On 25-4-2001, the learned trial Judge passed another order directing the husband to deposit atleast 50% of the amount as then due as per the order of interim maintenance, failing which the defence of the husband may be struck off. On 31-7-2001, the husband prayed for an adjournment by pleading that he would like to prefer revision petition against the order passed below Exhibit 44 on 25-4-2001. (This is the second order, by which the trial Court directed him to deposit atleast 50% of the amount then due ). It appears that on 31-7-2001, the learned trial Judge heard both the parties and passed order striking off the defence of the husband.

(3.) THE order is challenged by the learned Counsel for the petitioner, contending that the wife has already filed Execution Petition No. 286 of 2001 for recovering the maintenance amount from the husband and she cannot subject the husband to double jeopardy i. e. recovery of the amount through execution and simultaneously striking off the defence under Order XXXIX, Rule 11 of the Civil Procedure Code (Bombay Amendment ).