IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.MC.NO. 279 OF 2011() ------------------------------------------ CMP.3729/2009 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONER(S): RESPONDENT -------------------------------------------- GIREESH KUMAR G., AGED 46 YEARS, S/O. GOPALAN, G.G.LAND, MEL-VETTOOR DESOM, VETTOOR VILLAGE, CHIRAYINKIL TALUK. BY ADV. SMT.MINI GANGADHARAN SRI.N.C.SAJUNAM RESPONDENT(S): PETITIONER ---------------------------------------------- PRASEENA, AGED 37 YEARS, D/O. MEENAKSHY, VATTUVILAKOM @ KAVUVILA VEEDU, PLAVILA VEEDU, VETTOOR P.O., VETTOOR VILLAGE, VARKALA, CHIRAYINKIL TALUK, PIN-695 312. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.279 of 2011 ==================================== Dated this the 27th day of January, 2011 O R D E R Petitioner suffered an ex parte order (Annexure-R) dated October 9, 2009 in C.M.P. No.3729 of 2009 of the court of learned Judicial First Class Magistrate, Varkala under Section 12 of the Protection of Women from Domestic Violence Act, 2005. As per the impugned order petitioner is directed to pay Rs.5,000/- per month towards maintenance of respondent and children from 23.06.2009 (date of petition) till date of order and at the same rate thereafter. There is also a direction to pay Rs.4,50,000/- to the respondent being the value of gold ornaments and Rs.6,50,000/- for construction of building. Petitioner filed C.M.P. No.3659 of 2010 to set aside the ex parte order. Leaned counsel submitted that the said petition is pending consideration and the case is posted on 26.02.2011. In the meantime petitioner challenged Annexure-R, order on C.M.P. No.3729 of 2009 in the court of learned Sessions Judge, Thiruvananthapuram in Crl. Appeal No.357 of 2010. Learned Sessions Judge has dismissed that appeal. Pursuant to that, respondent has filed application to execute Annexure-R, CRL.M.C. No.279 of 2011 -: 2 :- order. Petitioner states that though applied for he has not been served with a copy of judgment in Crl. Appeal No.357 of 2010. Hence this petition requesting to quash Annexure-R, order (in C.M.P. No.3729 of 2009) under Section 482 of the Code of Criminal Procedure (for short, “the Code”) as remedy of appeal is exhausted by dismissal of Crl. Appeal No.357of 2010. Learned counsel submitted that pursuant to the dismissal of the appeal respondent has initiated execution proceedings and the matter is posted on 05.02.2011. 2. If Crl. Appeal No.357 of 2010 is dismissed for whatever reason it be, I am not persuaded to think that petitioner is without any remedy. It is open to the petitioner to challenge that judgment under Sec.397 of the Code if circumstances warranted that. In such a situation there is no reason why this Court should interfere under Sec.482 of the Code. But to invoke the statutory remedy against judgment in Crl. Appeal No.357 of 2010 petitioner has to get a copy of the judgment. If in the meantime Annexure-R, order is executed petitioner will be put to difficulties and inconvenience. In the circumstances I am inclined to grant some relief to the petitioner but ensuring that respondent is not put to inconvenience on account of that. CRL.M.C. No.279 of 2011 -: 3 :- Resultantly, Criminal Miscellaneous Case is disposed of in the following lines: (i) Leaned Sessions Judge, Thiruvananthapuram is directed to issue certified copy of judgment in Crl. Appeal No.357 of 2010 of that court, if it is applied for as early as possible and at any rate within one month from the date of receipt of a copy of this order. (ii) Execution of Annexure-R, order dated October 09, 2009 is stayed for a period of forty (40) days from this day or till appropriate order is passed by the revisional court, whichever is earlier subject to the following conditions: (a) Petitioner shall deposit in the trial court for payment to the respondent `.30,000/- (Rupees Thirty thousand only) (being a portion of the arrears of maintenance ordered by the learned CRL.M.C. No.279 of 2011 -: 4 :- Magistrate vide Annexure-R, order) within two weeks from this day. (b) Petitioner shall continue to deposit in the trial court for payment to the respondent maintenance allowance payable from October 09, 2010 during the said period of forty (40) days. The said amount shall be paid within a period of one month from this day. (c ) In case of default of any of the conditions stated above, it will be open to the respondent to proceed execution of Annexure-R, order. THOMAS P. JOSEPH, JUDGE. vsv