IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 54 of 2007 Smt. Kushalta @ Kaushal D/o Preetam Singh W/o Satender R/o Village Nagla Salaru Police Station Manglaur District Haridwar Present Address Verma Clinic P-511 Mandir Marg, Baljeet Nagar New Delhi. ….....Appellant. Versus Satender D/o Satveer R/o Village Kherajat Police Station Manglaur District Haridwar. ……….Respondent. Shri Manish Arora, Advocate for the appellant. Shri Ajay Veer Pundir, Advocate for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the order dated 16.06.2006, passed by learned Additional Judge, Family Court, Roorkee, whereby in Execution Case No. 11 of 2004, she has directed to adjust the amount under Section 125 of Code of 2 Criminal Procedure, 1973 (herein after referred as Cr.P.C.), with the amount directed to be paid under Section 24 of Hindu Marriage Act, 1955. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that respondent- Satender Kumar (husband) appears to have instituted suit No. 137 of 1999, against his wife Kushalta (present appellant), under Section 9 of Hindu Marriage Act, 1955, before Civil Judge, Sr. Div., Roorkee, for decree of restitution of conjugal rights. During said proceedings, the order was passed on 27.11.2000, under Section 24 of Hindu Marriage Act, 1955, directing the husband (present respondent) to pay Rs. 500/- per month as interim maintenance to the wife (present appellant) and Rs. 500/- to each of the two children, born out of the wedlock (in all Rs. 1500/- per month). It appears that said suit was disposed of on 08.02.2003. After the disposal of said case, Smt. Kushalta (present appellant) sought execution of the order passed under Section 24 of Hindu Marriage Act, 1955, for recovery of interim maintenance amounting to Rs. 59, 350/-, which was registered as execution case No. 11 of 2004. In said execution case, the husband (present respondent) filed objections that the decree holder (wife/present appellant) was 3 already receiving Rs. 900/- per month under orders passed in proceedings under Section 125 Cr.P.C. The judgment debtor (present respondent) sought adjustment of said amount in execution of recovery of amount directed to be paid under Section 24 of Hindu Marriage Act, 1955. The trial court after hearing the parties allowed the adjustment. Aggrieved by said order dated 16.06.2006, passed by Additional Judge, Family Court, Roorkee, in Execution Case No. 11 of 2004, this appeal is preferred by the decree holder (wife). 4. Learned counsel for the appellant argued that there is no provision of law to adjust an amount payable under Section 125 of Cr.P.C. with the amount directed to be paid under Section 24 of Hindu Marriage Act, 1955 in execution. In reply to this, on behalf of the learned counsel for the respondent, attention of this Court is drawn to the case of Sandeep Chaudhary Vs. Radha Chaudhary AIR 1999 Supreme Court 536, in which it has been held that while determining the amount of interim alimony under Section 24 of Hindu Marriage Act, 1955, amount, which is directed to be paid under Section 125 of Cr.P.C. is adjustable. On perusal of said case law, we found that the principle of law laid down by the Apex Court applies to the proceedings in determining the 4 amount of interim alimony. It does not approve that in the execution proceedings, the amount directed to be paid under Section 125 Cr.P.C. can be adjusted in recovery of amount payable under Section 24 of Hindu Marriage Act, 1955 (unless the deposited amount is in excess to the amount payable). As such, the impugned order, passed by the trial court in execution is erroneous in law. 5. Therefore, for the reasons as discussed above, this appeal is allowed. The impugned order dated 16.06.2006, passed by Additional Judge, Family Court Roorkee, in Execution Case No. 11 of 2004, is set aside. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 04.09.2008 Sweta 5 6 7 8 9 10