1 wp 4831.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4831 OF 2011 Sunil Kashinath Kale, Age : 36 Years, Occu. : Service, R/o Hartala, Tq. Muktainagar, District Jalgaon. .. .. Petitioner Versus Aarti Sunil Kale, Age : 28 Years, Occu. : Household, R/o Gajanan Niwas, Plot No. 3, Near Rameshwar Colony, Meharun, Jalgaon, Tq. & Dist. Jalgaon. .. .. Respondent Shri V. B. Patil, Advocate for the the Petitioner. Shri P. B. Pawar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 04TH AUGUST, 2011. ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioner is the judgment debtor. The present 2 wp 4831.11 respondent had filed a petition for restitution of conjugal rights which came to be allowed. The respondent preferred execution invoking the provisions of Order XXI Rule 32 and 33 of the Code of Civil Procedure. 3. The decree holder filed an application U/O XXI Rule 32 and 33 of the C. P. C. seeking directions against the present petitioner to deposit Rs. 20,000/- per month from the date of decree passed by the Court. The said application is partly allowed by the Executing Court. The Executing Court vide impugned oder has directed the present petitioner to pay Rs. 10,000/- per month. The said order is assailed in the present writ petition. 4. Shri V. B. Patil, the learned counsel for the petitioner contends that the impugned order could not have been passed in view of provisions of Order XXI Rule 32 of the C. P. C. unless and until Rule 33 of Order XXI of the C. P. C. is applied, the Court cannot proceed to pass the order of periodical payment under Order XXI Rule 33(1) of the C. P. C. and on this count the said order is illegal. According to the learned counsel, the Executing Court has not considered these provisions in its correct 3 wp 4831.11 perspective. 5. Shri Pawar, the learned counsel for the respondent contends that provisions of Order XXI Rule 33 are independent and the powers of the Court U/O XXI Rule 33 are not restricted by provisions of Order XXI Rule 32. The power U/O XXI Rule 33 can be independently exercised de-hors the provisions of Order XXI Rule 32. More than three years have passed the petitioner has not obeyed the decree. As such, the Court below was justified in passing the impugned order. No illegality has been committed by the Court below. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Vijendra B. Singh Vs. Uma Vijendra Singh reported in 2011(1) B. C. R. 383. 6. Reading Rule 33 of Order XXI it is manifest that the same starts with non-obstante clause. When a provision starts with a non-obstante clause, same has to be read dehors the earlier provision. Sub Rule 1 of Rule 33 of Order 21 itself lays down that notwithstanding anything in the 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 4 wp 4831.11 decree shall be executed in the manner provided in this Rule. As such the said Rule 33 is independent and the Executing Court can resort to this Rule 33 of Order XXI without any orders being passed under Order XXI Rule 32. 7. Sub Rule 2 of Rule 33 of Order XXI lays down that if the decree is not obeyed within such a period as may be fixed in this behalf, the judgment debtor shall make to the decree holder such periodical payments as may be just. As such sine qua non for resorting to Sub Rule 2 of Rule 33 of Order XXI is that before making an order directing the judgment debtor to make periodical payments to the decree holder the Court has to pass an order directing the petitioner to obey the decree within a specified period as may appear just and proper to the Court. 8. The judgment in a case of Vijendra B. Sing referred supra also lays down the same proposition. In the present case, the Executing Court has directly passed an order directing the petitioner to make the periodical payments without passing any order directing the judgment debtor to obey the decree within a specified time. In that light of the matter, the impugned order cannot be sustained and deserves to be quashed and set aside. 5 wp 4831.11 9. The Court may pass an order for periodical payments after it passes an order directing the judgment debtor/present petitioner to obey the decree within a specified period and in case the petitioner does not obey the said directions/decree. 10. The parties shall appear before the Executing Court on 18 th August, 2011. The Executing Court shall thereafter, expeditiously deal with the matter. 11. The writ petition is accordingly allowed with aforesaid observations. Needless to state the decree holder is at liberty to take such steps as are permissible in law. The Rule is made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11