PRASENJIT MANDAL,J. - (1.) THIS application is at the instance of the husband and is directed against the Order dated July 7, 2011 passed by the learned Additional District Judge, Court, Jalpaiguri in Misc. Case No.05 of 2011 arising out of Money Execution Case No.6 of 2008 thereby rejecting the prayer for stay of the aforesaid Money Execution Case.
(2.) THE husband/petitioner herein instituted a matrimonial suit being Mat. Suit No.42 of 1988 for dissolution of marriage contending, inter alia, that the marriage between the two was solemnized according to Hindu Rights and Customs. But the wife/opposite party left the house of the husband without consent of the husband and without any reasonable excuse and thus, the wife deserted the petitioner. The petitioner and his nearly relations went to the house of the wife to take her back in vain. So, the suit was filed for divorce. The wife/opposite party was contesting the said suit. She filed an application under Section 24 of the Hindu Marriage Act for alimony and the alimony was granted at the rate of Rs.250/- per month in 1989, the said amount was subsequently enhanced to Rs.500/- per month. The husband is paying the said amount. The matter was not fixed for peremptory hearing but ultimately, the husband came to know that the suit was dismissed for default on July 6, 2007. On the same day in disposing of an application under Section 25 of the Hindu Marriage Act, the learned Trial Judge granted permanent alimony at the rate of Rs.2000/- per month in favour of the wife/opposite party with effect from date of filing of the application, that is, on June 24, 2005. For non- payment of such permanent alimony, the wife filed the Money Execution Case No.6 of 2008 for realization of the dues. In that Execution Case, the husband filed an application under Section 47 of the Criminal Procedure Code which had been converted into the Misc. Case No.5 of 2011 and in that Misc. Case, he prayed for dismissal of the Execution Case on the ground that the decree was a nullity. His prayer for stay of the Execution Case was rejected by the order dated July 7, 2011. Being aggrieved, this application has been filed. Upon hearing the learned Counsel for the petitioner and on going through the materials-on-record, I find that the prayer for stay and the reliefs under Section 47 of the Civil Procedure Code in the said Misc. Case are on the selfsame ground contending, inter alia, that since the Matrimonial Suit was dismissed for default, permanent alimony should not have been granted. The main application under Section 47 of the CPC will be heard and disposed of in due time. The decree-holder/wife filed an application praying for time to file the written objection against the application under Section 47 of the CPC.
(3.) ON the selfsame ground, the prayer for stay was also sought for. That prayer was rejected by the learned Executing Court holding that the conduct of the judgment-debtor regarding payment was not satisfactory and so, the prayer for stay was rejected. Whatever may be the ground recorded by the learned Executing Court, the reliefs sought for in the application for stay and in the application under Section 47 of the CPC are one and same that is 'not to proceed with the Execution Case.' But, I find that the earlier order dated July 6, 2007 in Misc. Case No.57 of 1988 by which the permanent alimony was granted, has not been challenged by starting appropriate proceedings. It is only in the year 2011, when the application under Section 47 of the CPC has been filed by the husband challenging the inexecutability of the order. That shall be decided in due course as observed above. But the order of permanent alimony still remains in force. Mr. Swapan Kr. Mallick, learned Counsel for the petitioner, has referred to the decision of Chand Dhawan(SMT) V. Jawaharlal Dhawan reported in 1993 Supreme Court Cases (Cri) 915 and submits that in case of dismissal of the petition of the husband under any of the provisions of Section 9 to 14, no alimony can be granted to the wife petitioning under Section 25 as recorded above. That matter shall be heard and decided at the time of entertaining the application under Section 47 of the CPC. The dismissal order was passed in the year 2007 and the application under Section 47 of the CPC was filed only on July 4, 2011 in the Execution Case filed by the wife in the year 2008. So, the learned Trial Judge has observed that because of inaction for long time, no stay should be granted. The merit of the order dated July 6, 2007 relating to grant of alimony shall be considered subsequently. So, this decision will not be helpful now.;