Recall
GANGO PADHYAYA
(Querist) 29 August 2014
This query is : Resolved
"To recall its order in maintenance"
Whereas wife obtained a decree that "vacant house land generate income" and IN EXECUTION PETITION WIFE obtained "NBW" against husband.
while police come to HUSBAND house and he consulted his previous counsel they said kept quite : Husband approached a new Counsel The new counsel find the fraud:
The new counsel explain the all the fraud story to husband
NOW WHAT ARE THE CITATIONS PLACE BEFORE COURT TO RECALL HIS "NBW"
SUGGEST
ajay sethi
(Expert) 29 August 2014
you dont need citations . husband should apply before the court for stay of NBW
Rajendra K Goyal
(Expert) 30 August 2014
Consult other lawyer, prey for sty on NBW.
Citation not provided.
T. Kalaiselvan, Advocate
(Expert) 03 September 2014
In execution petition, it will be a civil arrest and not an action by police, there wont be a NBW too. If it is a criminal case u/s 125 cr.p.c., then in the collection petition NBW can be issued. Thus, a warrant recall petition u/s 70(2) cr.p.c. may be filed by surrendering before the concerned court to recall the said warrant.
GANGO PADHYAYA
(Querist) 05 September 2014
2003 (3) Supreme 505 Words and Phrases: “per incuriam”
Words and Phrases—Doctrine of per incuriam—Circumstances where a decision could be considered to have been rendered per incuriam—Where a case or statute had not been brought to Court’s attention and Court gave decision in ignorance of forgetfulness of existence of case or statute, it would be a decision rendered in per incuriam –Earlier judgement may seem to be not correct yet it will have binding effect on latter bench of co-ordinate jurisdiction.
4.) (1996) 5 Supreme Court Cases 550
In Smith v. East Elloe Rural District Council (1956) AC 736, the House of Lords held that the effect of fraud would normally be to vitiate any act or order. Order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
IT IS OPEN TO CONTEST THESE TWO:
BECAUSE THE HUSBAND LAWYER NOT CONTESTED AND HE IS EXPARTE
