- (1.) AMITAVA Lala, J. Since the point for consideration is a question of law, the appeal is heard on the informal papers by the consent of the parties.
(2.) THIS appeal is primarily arising out of the decree for maintenance passed by the Additional Principal Judge, Family Court, Kanpur City on 7th December, 2005 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act) in Suit No. 575 of 1999. Learned Counsel appearing for the appellant contended before this Court that the order which has been passed by the Court below is contrary to the settled position of law. A decree for divorce dated 4th September, 1999 passed by joint Civil Judge, Senior Division, Thane, Maharashtra in Marriage Petitioner No. 234 of 1997 is pre-existing. After passing decree for divorce by the appropriate Court of law, a suit or proceeding under Section 18 of the Act cannot be maintainable. We find that upon considering certain judgments particularly AIR 1982 SC 818, Babu Lal v. M/s. Hazari Lal Kishori Lal & Anr. , and AIR 1998 All 346, Zilla Panchayat, Bijnor v. VIIth Addl. Distt Judge, Bijnor & Ors. , the Court below held that although decree for divorce was passed by an appropriate Court of law but when a restoration application is pending therein, the same will tantamount to pendency of that suit for the purpose of having maintenance by the wife under Section 18 of the Act, 1956.
(3.) IN this context, certain dates are relevant to be recorded hereunder. The date of Marriage is 16th February, 1997. The date of decree for divorce is 4th September, 1999. The application for setting aside the ex parte decree under Order IX, Rule 13 was made along with an application under Section 5 of the Limitation Act on 26th July, 2000. The same was also dismissed on 27th April, 2006. A further application for recalling of such order of dismissal of the application was made on 30th October, 2006 also along with an application under Section 5 of the Limitation Act, which is still pending. Against this background, we have gone through the judgments which have relied upon by the Court below. In paragraph 17 of the Supreme Court judgment reported in Babu Lal (supra), it has been held that the term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. We have seen therein that the discussion was made in connection with an application for execution. By analysis of the judgment also in accordance with settled law one aspect is very clear that an application for execution is a process of continuity for the purposes enforceability of decree and as such, during the pendency of such type of application, it cannot be said that the proceeding is not pending.;