THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P.No. 5804 2009 Dated: 11-02-2010 Between:- 1. Kakani Ranga Rao 2. Kakani Ramakotaiah (died) ..Petitioners. And Kakani Vardhanamma and others. Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P.No. 5804 of 2009 Oral Order: This revision under Article 115 of the Code of Civil Procedure, 1908 is misconceived. The respondents are the wife and two daughters of the 1st revision petitioner. The respondents along with another daughter (late Kakani Ranga Saraswathi) filed O.S.No. 166 of 1977 on the file of the learned Additional Subordinate Judge, Ongole, against the petitioner and his father late Kakani Ramakotaiah for maintenance. The suit was decreed on 30-09-1980 directing the revision petitioner, to pay the wife – the 1st respondent – Rs. 1800-00 per annum towards her maintenance, from the date of suit i.e., 30-06-1977 and during her life time; to pay the daughters Rs. 1,000-00 each per annum towards their maintenance from the date of suit i.e., 30-06-1977, till their marriage; to pay the daughters a sum of Rs.10,000-00 each towards their marriage expenses; further directing to provide separate residence in the eastern portion of the ancestral house to the wife and daughters or alternatively pay them Rs.2,000-00 to meet their shelter requirements; creating a charge over the half share of the revision petitioner that will likely to be allotted to him in O.S.No. 74 of 1977 on the file of the learned Senior Civil Judge, Addanki, to cover security for the amounts of maintenance for the wife and daughters, marriage expenses and separate residence obligations directed under the decree; and directing payment of costs of the suit. It would appear that the wife had filed a maintenance case in M.C.No.13 of 1989 against the revision petitioner which was ordered on 10-09-1991. She is also stated to have filed another maintenance case in M.C.No. 24 of 2003 on the file of the learned Additional Junior Civil Judge, Addanki for enhancement of the maintenance which was allowed in part by the order dated 11-10- 2007. Questioning the enhancement of the maintenance, the revision petitioner filed Crl.R.P.No. 131 of 1991 before the learned Court of Sessions, Ongole, which was partly allowed by the order dated 29-04-2008. The petitioner asserts to be paying maintenance as per the orders in M.C.No. 13 of 1989. The respondent filed E.P.No. 21 of 2005 for realization of the arrears of maintenance, marriage expenses and other amounts as per the decree in O.S.No. 166 of 1977. In an earlier order dated 13-07-2006, E.P.No. 21 of 2005 was dismissed by the Court of the learned Senior Civil Judge, Addanki on the ground that the execution petition was barred by the principles of res judicata, as an earlier E.P.No. 14 of 1982 seeking the same relief viz., the sale of charged properties, was dismissed on merits. While dismissing the execution petition on the ground of res judicata as stated, the Court below however went into other objections as to the maintainability of the execution petition urged by the revision petitioner herein including the plea of the revision petitioner to have made payment of Rs.45,000-00 in pursuance of the maintenance decree in M.C.No. 13 of 1989, and the Court below held that in the calculation memo filed by the respondents herein (in the earlier round of E.P.No. 21 of 2005) they had deducted Rs.32,358-00 stated to have been received by them by way of cheque from the revision petitioner. However, there was no evidence led in support of the payment of Rs.45,000-00 pursuant to orders in M.C.No. 13 of 1989. The plea of limitation as a bar for E.P.No. 21 of 2005 was also rejected. The execution petition was however dismissed on the plea of res judicata. Aggrieved by the order of the executing Court dated 13-07- 2006 in E.P.No. 21 of 2005,the respondents herein filed C.R.P.No. 5755 of 2006. This revision was allowed by this Court by the judgment dated 15-07-2008 reversing the finding that the execution petition was barred by res judicata. Consequently, the execution petition stood restored and by the proceedings dated 05-11-2009 a sale notification of the charged properties was notified and this has occasioned this revision. Demonstrably the revision petitioner has not filed any application in E.P.No. 21 of 2005 in which the Court below could consider objections as to the maintainability of the E.P. or for interdicting proceedings initiated by the respondents for sale of the charged properties. Sri G. Venkata Reddy, the learned counsel for the petitioner would contend that in view of the judgment of the Supreme Court in Sudeep Chaudhary v. Radha Chaudhary [1]; of a learned single Judge of the Gujarat High Court in Dharmishthaben Hasmukhbhai v. Dr. Hasmukhbhai Prabhudas Ranpurs & Anr., [2] and of a learned single Judge of the Calcutta High Court in Ashoke Kumar Routh v. Smt. Sovana Routh (Dey)[3], the quantum of maintenance ordered in O.S.No. 166 of 1977 is unenforceable since the trial Court in the judgment in O.S.No. 166 of 1977 failed to consider that maintenance had already been ordered in favour of the wife in M.C.No. 13 of 1989. None of the decisions relied on behalf of the petitioner enunciate as an invariable principle that an amount awarded towards maintenance under Section 125 Cr.P.C. shall as a legal requirement be set off against the amount of maintenance awarded under civil proceedings. In Sudeep Chaudhary (1 supra) in paragraph No.6 the Apex Court has clearly stated that in the absence of the wife, it is not inclined to go into any detailed discussion of the law. The Court however observed that there was merit in the husband’s contention that the maintenance amount should be adjusted towards interim alimony. The Magistrate before whom the recovery proceedings were pending had upheld the husband’s contention for adjustment which was however reversed by the High Court which held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act. On appeal the Apex Court observed that the claim of the husband and wife are to be balanced and therefore directed that the husband shall pay Rs. 1000-00 to the wife towards maintenance which would include the amounts awarded under Section 125 of the Cr.P.C. as well as the amounts awarded in the matrimonial proceedings, commencing from the date of the order in the proceedings under Section 125 Cr.P.C. On a careful consideration of the judgment of the Supreme Court, this Court is not persuaded that it declares as law that in every case irrespective of the circumstance of a case, the amounts awarded in proceedings under Section 125 Cr.P.C. must be set off or be given credit to qua the maintenance determined under civil proceedings including under Section 24 of the Hindu Marriage Act. If the spouse has suffered a maintenance decree, it is for such party to plead in the matrimonial proceedings that the husband had already incurred the maintenance liability in such quantum and that this factor should be considered in determining the maintenance amount to be awarded in the matrimonial proceedings, having regard to the totality of relevant circumstances which would include the income and the status of the husband, the status and circumstance legitimately expected to be maintained by the wife and children and other relevant circumstances. The judgments in Dharmishthaben Hasmukhbhai (2 supra) and Ashoke Kumar Routh (3 supra) also do not explicate any principle of law that would provide a guidance, that the amount granted towards maintenance under Section 125 Cr.P.C. should invariably be deducted from the amount of maintenance granted in matrimonial proceedings. Neither on text nor on authority is this Court satisfied that the judgment and decree in O.S.No. 166 of 1977 is patently and inherently without jurisdiction on account of failing to give credit to the maintenance liability suffered by the petitioner under the decree in M.C..No. 13 of 1989. At any rate, there is no order of the Court below against which the revision is filed. In the circumstances above, there are no merits. The revision is dismissed. No costs. ____________________ GODA RAGHURAM, J Dated: 11-02-2010 Pvks/* Nb:- LR copy to be marked YES/NO. [1] AIR 1999 SC 536 [2] 1989 (3) CRIMES 134 [3] 1990 (1) CRIMES 491