Prakash Tatia, J. - (1.) HEARD learned Counsel for the appellant. The appellant is aggrieved against the order of DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. the Family Court, Jodhpur dated 20.12.2005 whereby the Family Court stayed the divorce petition proceedings on account of non -payment of maintenance amount by the appellant/petitioner to the respondent No. 2, wife of appellant. The said order was challenged by the appellant by filing writ petition No. 1440/2006 which was dismissed by this Court vide order dated 7.2.2007 after observing that the trial court has erred in favour of the petitioner in only staying the proceedings, which were otherwise required to be dismissed for non -payment of the amount in view of the Division Bench judgment of this Court in Jaishanker v. Chandresh reported in : 1980 WLN UC 82. However, the learned Single Judge also did not dismiss the divorce petition of the appellant even after observing as stated above. Not satisfied with the above order rather say aggrieved against the order of learned Single Judge dated 7.2.2007 passed in writ petition No. 1440/2006, the appellant has preferred this special appeal. We would like to narrate the facts of the case in brief.
(2.) THE divorce petition was filed by the appellant against his wife (respondent No. 2) in the Family Court as back as in the year 2001. In the said divorce DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. petition, an application under Section 24 of the Hindu Marriage Act, 1955 (for short 'the Act of 1955') was submitted by the respondent No. 2 on 20.2.2002 and she claimed maintenance at the rate of Rs. 1,000/ - per month for herself and litigation costs of Rs. 7,500/ -. The said application was contested by filing detailed reply by the appellant in the Family Court stating therein that the appellant is advocate and also oath commissioner but he has no sufficient income. His father is retired teacher and is getting pension of Rs. 4000 -4500/ -. The appellant also took the plea that the respondent No. 2 has her own income and she is in position to maintain herself. After hearing the arguments, the Family Court vide order dated 27.9.2002 allowed the respondent No. 2's application filed under Section 24 of the Act of 1955 and awarded a small amount of Rs. 500/ - per month as maintenance to the respondent No. 2 and also ordered to pay Rs. 2,000/ - as litigation costs to the respondent No. 2. Admittedly, against the order dated 27.9.2002, the respondent No. 2 could not get a single penny even after passing of more than 5 years by now. It is interesting to note that none else than the appellant, who in fact is a judgment debtor in the proceedings under Section 24 of the Act of 1955, DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. himself submitted an application before the Family Court under Order 21 Rules 30 & 31 and Section 151 CPC read with Section 18 of the Family Courts Act. The appellant stated that the order has been passed against him for payment of Rs. 500/ - per month to his wife and for payment of Rs. 2,000/ - as litigation costs. It is submitted that since the appellant is a very poor person and has negligible income, therefore, he is not in a position to pay the awarded amount in cash. Therefore, he is offering his scooter No. RJ -19 7M 7121 which may be attached and sold and the amount recovered from the sale of the scooter may be paid to the respondent against her maintenance. He also submitted a copy of the registration certificate of the scooter to show that the scooter is registered in his own name, obviously to say that he has right to sell it. The appellant further stated that in case, the total claim of the respondent No. 2 is not satisfied by the sale proceeds of the scooter of the appellant, then he is offering his gold chain and one gold ring which also may be attached and those articles may also be sold out so that the maintenance amount of the respondent No. 2 may be paid.
(3.) AT the outset, this Court has no hesitation in DB Civil Special Appeal (Writ) No. 649/2008 Kamal Kishore Ashopa v. State of Rajasthan and Anr. observing that the practice of offering properties by the judgment debtor in the execution petition for sale, is required to be examined carefully by the courts of law because of the reason that any prudent man will not do so as he himself can sell the property as a prudent man and get the best price of the property but when a person offers the property to the Court and seek intervention of the Court for sale of his own property, then this fact itself, ordinarily is sufficient to create doubt about the intention of such person whose act is not as of a person of ordinary prudence in the matter of getting the best price for his own property. Then, first question required to be put to such person is "why he himself is not selling the property - If the trial court would have asked this question to the appellant or event to itself, then the matter would not have reached to "no relief to the person to whom the appellant and the Court both wanted to give". Then, all surrounding circumstances are required to be seen carefully to find out whether that offer is bonafide or not and whether that offer is to deliberately delay the recovery proceedings in the Court so as to deny the benefit of order/judgment/decree to the holder of order or decree.;