HAJEE Vs. GULLU SHAH
LAWS(J&K)-1982-8-2
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 03,1982

Hajee Appellant
VERSUS
Gullu Shah Respondents

JUDGEMENT

- (1.) THIS revision is directed against an order passed on 5th of March, 1981, by the Sub Judge, Badgam, in an execution petition. The petition related to execution of a decree for restitution of conjugal rights By the impugned order the executing court has directed the attachment of movable and immovable property of the judgment debtor as a result of her failure to comply with the decree for restitution of conjugal rights. The respondent decree -holder has raised a preliminary objection in regard to the maintainability of the revision petition on the ground that the impugned order is appealable and as such the revision is incompetent. It has been urged that under Rule 32 (1) of Order 21 CPC, a decree for restitution of conjugal rights can be executed by detention of the judgment debtor in civil prison, or by the attachment of the property or by both, and as such an order made under sub -rule (1) is an order relating to execution and satisfaction of the decree and the provisions of Section 47 would be attracted and the order will be appealable. For this, reliance has been placed on a decision of the Patna High Court in Shivdhari Gope and ors Versus Anant Paddar andors (A. I. R. 1971 Patna, 121). In that case, the executing court passed an order directing the attachment of the moveable property of the judgment debtor; on the finding that he had violated the decree for injunction. Before the High court, the question arose whether the order was appealable, The court answered the question in the affirmative holding that the order related to execution and satisfaction of the decree for injunction and as such the provisions of Section 47 C. P. C. were applicable and the order was appealable. This principle is equally applicable in the present case in as much as according to the provisions of Order 21 rule 32 C P. C prevalent in our State, it is decree for restitution of conjugal rights is executable in the same manner as a decree for injunction. In the present case, therefore, the order of the executing court directing attachment of the property of the judgment debtor on the ground that she had failed to comply with the decree, amounts to an order concerning execution and satisfaction of the decree and as such provisions of Section 47 are attracted and the order will be appealable. In that view, the preliminary objection must prevail and it must be held that the revision petition is incompetent. I order accordingly and dismiss the revision petition.
(2.) THE petitioner will be at liberty to file an appeal, if so advised.;


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