IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 410 of 2003 (M/S) Surendra Dev Arya S/o Late Sri Shankar Dev Arya R/o Village-Arya Nagar Post & Tehsil-Gadarpur District Udham Singh Nagar. ………Petitioner Versus 1. Family Court, Udham Singh Nagar. 2. Smt. Sunita Arya W/o Sri Surendra Dev Arya D/o Ganesh Prasad R/o Mohalla Ganesh Nagar Chini Mill Ke Samne Badoun Road, Bareilly, U.P. ….Respondents. Shri S.K. Mandal, Advocate present for the petitioner. Shri Anil Dabral, Advocate holding brief of Shri D.S. Patni, counsel for respondent No. 2 Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the proceedings of Execution Case No. 02 of 2002, and the orders dated 02.01.2003, and 05.05.2003, passed by Judge Family Court, Rudrapur, District Udham Singh Nagar, in said execution case. A further mandamus has been sought directing the respondents 2 not to realise the amount of Rs. 9,600/- sought to be recovered from the petitioner. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the petitioner (husband), filed a suit No. 193 of 2000, before Civil Judge, Sr. Div., Udham Singh Nagar, for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955, against the respondent No. 2 –Sunita Arya (wife). It appears that during the pendency of said petition, respondent No. 2, moved an application for maintenance under Section 24 of Hindu Marriage Act, 1955. Said application 4C was disposed of vide order dated 07.04.2001, by the trial court, whereby the petitioner was directed to pay Rs. 2,000/- towards litigation expenses, and Rs. 500/- per month as maintenance, to respondent No. 2. However, it appears that later the parties reconciled the matter between them and an application was moved on 22.12.2001, before the trial court, wherein the petitioner sought to withdraw the petition, moved under Section 9 of Hindu Marriage Act, 1955. In said application, copy of which is Annexure-4 to the writ petition, it is stated by the petitioner that his wife has joined his company, and as such he does not want to proceed with the case. Said application was numbered as 19C. 3 Meanwhile, Family Court was created in District Udham Singh Nagar, and the suit was transferred to the newly created Family Court, which was renumbered as suit No. 197 of 2000. Learned Judge, Family Court, vide its order dated 14.05.2002, allowed the application of the petitioner to withdraw the petition, moved under Section 9 of Hindu Marriage Act, 1955, and the suit for restitution of conjugal rights, stood dismissed as withdrawn. It appears that later, at some stage, execution was sought for recovery of Rs. 9,600/- on behalf of respondent No. 2 from the petitioner towards maintenance for the period of 02.03.2002 to 14.05.2002, and also the litigation expenses awarded, as above. 4. Learned counsel for the petitioner argued that no notice was issued by the Judge, Family Court to the petitioner and straightaway recovery of warrant was issued completely in violation of Order 21 Rule 11 sub-clause (3) and Rule 22 of C.P.C., as neither certified copy of the decree was filed in the execution nor any notice was issued. He further contended that after the compromise between the parties, no amount was to be paid to respondent No. 2. He also contended that even the amount sought to be recovered is not in accordance with the amount directed to be paid under Section 24 of Hindu Marriage Act, 1955. 4 5. Having considered submissions of learned counsel for the petitioner and after going through the papers on record, keeping in view that the parties had entered into compromise, this writ petition is allowed. Impugned execution proceedings and the impugned orders, passed by the executing court (Judge, Family Court, Udham Singh Nagar) in execution case No. 02 of 2002, are hereby quashed. (Prafulla C. Pant, J.) Dt:17.09.2009 Sweta