1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2311 OF 2009 Madhukar Jaywant Kale .. Petitioner versus Sonali Madhukar Kale .. Respondent Mr.S.G.Deshmukh i/by Mr.A.J.Kandarkar for the petitioner. Mr.Milind Deshmukh for the respondent. CORAM : A.S.OKA, J. DATE : 4th February 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The petitioner is the husband and the respondent is the wife. A petition for restitution of conjugal rights was filed by the respondent. The trial Court decreed the petition by passing a decree for restitution of conjugal rights. The trial Court directed that if the decree is not complied with within a period of two months, the petitioner shall pay permanent alimony of Rs.2,500/- under Rule 33 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). An appeal was preferred by the petitioner in which the application for stay of execution of the decree was made. By the impugned order dated 11th December 2008 , the application for stay has been rejected. 2. The learned counsel appearing for the petitioner submitted that apart from the fact that a petition seeking divorce filed by the petitioner was pending before the Family Court, an independent application under section 125 of the Code of 2 Criminal Procedure, 1973 was made by the respondent. He submitted that in any case while passing the decree, permanent alimony could not have been granted in exercise of powers under Rule 33 of Order XXI of the said Code. 3. The learned counsel appearing for the respondent supported the impugned order by submitting that under Rule 33 of Order XXI of the said Code the trial Court was justified in providing for time limit within which the decree for restitution of conjugal rights shall be implemented. He submitted that the Court was justified in passing consequential order under sub-rule 1 of Rule 33 of Order XXI of the said Code . He submitted that an order directing payment of maintenance could not have been stayed. Hence no interference is called for. 4. I have given careful consideration to the submissions. A substantive appeal against the decree passed by the trial Court is pending before District Court. Rule 33 of Order XXI reads thus: “33. Discretion of Court in executing decrees for restitution of conjugal rights.-(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree [against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree [shall be executed in the manner provided in this rule]. (2) Where the Court has made an order under sub-rule (1), it may order, that in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. (3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by 3 altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just. (4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.” 5. It is true that in view of sub-rule 1, at the time of passing a decree for restitution of conjugal rights, the Court could have directed that the decree shall be executed in the manner provided in the said rule. Sub-rule 2 provides that when the Court has made order under sub-rule 1 it may order that in the event the decree may not be obeyed within such period as may be fixed in that behalf, the judgment debtor should make to the decree-holder such periodical payments as may be just. In the decree , though a reference is made to Rule 33 of Order XXI of the said Code , the learned Judge has purported to grant permanent alimony which could have been granted only under section 25 of the Hindu Marriage Act, 1956. The payment contemplated by Rule 33 cannot be equated with alimony. Apart from this , when a substantive appeal is pending, during the pendency of the said appeal, the execution of the decree ought to have been stayed. Payment of the amount under sub-rule 2 of Rule 33 of Order XXI of the said Code is a consequence of not complying with the decree within the time fixed in that behalf. The decree is under challenge in a substantive appeal and therefore, pending the appeal, the execution of the decree ought to have been stayed. Even if the decree is stayed, the appeal being a continuation of the proceedings, the respondent can always apply for interim alimony under section 4 24 of the said Act of 1956 and the Court has power to grant appropriate interim alimony. 6. Hence, I pass the following order: : O R D E R : (a) The impugned order is set aside. The execution of the impugned judgment and decree dated 7th May 2008 will remain stayed till the disposal of the appeal. (b) The order of stay will not preclude the respondent from making an application under section 24 of the Hindu Marriage Act, 1956. If, such application is made, it will be decided on its own merits. (c) Hearing of the appeal is expedited and the appeal shall be decided on or before 30th June 2010. (d) Writ petition is allowed in above terms. (e) The respondent is permitted to withdraw a sum of Rs.5,000/- deposited by the petitioner. (A.S.OKA,J)