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Damayanti (Unemployed)     16 June 2011

Is it that only HC can stay execution interim maint?

Urgent help needed!!!

 

 

Question by a person who wants to stay the execution of interim maint order.

Person has filed stay of execution, and review petition, at the same family court.

 

Now question is does the Family Court have powers to stay execution of an interim order?

Can the family court do it under sec 151 atleast if not under O 21 Rule 29?

 

Please answer urgently.

 

 

 

 

Family Court has just asked me following question :-

 

Court said that ..

"family court has no powers to grant stay of execution of a interim maint order and you have to go to HC to get it.  Else bring the citation supporting your contention."




Is it that only High Court has powers to grant "stay of execution" of "interim maint order vide sec 24 of HMA" and Same, is it that Family Court does not have such powers?

 

 



But if we read sec 36 of CPC, O 21 R 29 of CPC
Then it suggests that

Either court which passed the decree can stay.

 


 

Sec 36 of CPC: Provisions for execution of decrees are applicable to Orders also.

Above provisions do not have explicit words as 'interim orders' ..
 

 

 

 

Please advise urgently.



Learning

 5 Replies

Damayanti (Unemployed)     19 June 2011

Can anybody help me!!!

 

 

Does Family Court have jurisdiction and powers to pass an Order of stay so as "to stay the operation/execution of  (its own order) Interim maintenance order vide HMA 24 or 26, which passed by the same court itself"?

 

 

Interim orders of maintenance passed under section 24 and/or section 26 of HMA are not appealable orders.

 

I want the same family court to pass the stay vide sec 151 due to exceptional circumstances which require the stay for the ends of justice.

 

 

I believe that passing an equitable relief of stay which essentially to have status quo if the order passed is severely under question, doesn't have an bar of jurisdiction.

 

 

But orders are not final and are inteim to the suit. The same Court also has powers to modify, vary or rescind the orders on such application by either party, due to change of circumstances.

 

 

Doesn't that clearly say that 'same is court is not ceased of jurisdiction in regards to the interim orders'.

 

 

Atleast exceptional circumstances may be taken as a 'change of circumstances' in regards to the order passed.

 

please give your suggestions and comments.

 

I do not have enough energy to take matters upto HC. I intend to deal with the matter at trial court level itself.

Damayanti (Unemployed)     27 June 2011

Can anyone help me on my queries?

P V Namjoshi (pvnamjoshi@gmail.com)     18 July 2011

Question is whether review application is tenable? Secondly it is a special law and if there is no provision for staying the proceedings or reviewing the order then better course is to go to the high court. 

Sajeev Menon (Legal Consultant Dubai 00971 508836442)     21 July 2011

Hi, If you have an interim order of maintenance which cant be stayed by appeal, you can file an appeal before the H.C to modify or review the interim order if it seems exorbitant or not reasonable.

P V Namjoshi (pvnamjoshi@gmail.com)     21 July 2011

Stay of execution is a vague term. There are different procedings in which stay can be granted by executing court it self or by appellate court also. What type of proceeding is pending in which you want to know. Secondly the family court may grant time to file appeal in the High Court and bring an order from the said court. 


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