neel (self) 12 January 2011

Urgent!!Inspite of stay App wife allowed to withdraw maint!!

Interim Maint case sec 24 of HMA (I am a husband respondent in divorce case)

Wife awarded interim maint. On 33rd after maint order (but as per limitation period it is 17th day..as per certified copy obtained date) during the hearing, Judge asked to pay arrears after opponent's lawyer pressed for it.

I paid the arrears by borrowing money.

Yesterday (27th day as per limtation) I filed application for

Application 1. 'nullity (recall of interim order for 'fraud on court') with cogent proofs of wife's bank account etc and all the details of her lies captured in 'Order' vide Sec 151 /Contempt of Court etc. (There are citations available of SC)

Applicatin 2: Application for stay of execution of 'order of interim Maint' vide O21 R 26 and 29 and O41 R 5

Hon Judge gave say on exhibit date to Feb-2011.

On the same hearing day in the afternoon, Hon Judge allowed wife's withdrawls of maintenance to withdraw 10000 from the paid amount!!! she withdrew that money and she is going to withdraw every day all money by Feb-2011.

What's the use of Stay of Execution application then??? Plese help me I am not able to under stand what's happening out here!!

Today I had gone to file 'Review Application' at the same Court ( that time I got to know about it!!! )with cogent reasons of review (error on face of record, new startling evidence which also amount to fraud on court to availl relief) I was stunned to see that she withdrawing the money in spite of the application.

Please advise me urgently. Thanks!! I still have 1 day (i.e. tomorrow) left for limitation period of 30 days of 'Review'

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neel (self) 31 January 2011

Dear All,

Please help me with the relevant citations and advise.

I have filed following

1. 'Review' application (technical and cogent grounds with ohoto copy of proofs. Error on record etc.)

2. 'Recall of interim maint order' using 151 of CPC alleging 'fraud on court' by petitioner to obtain the decree (with proofs)

'3. stay of execution' application O21 R 26 and 29.

'4. I paid 'all arrears' as of date, although I had to borrow money for that purpose.

All Applications are submitted at the same court/trial court i.e. FC within the limitation period.

Matter is pending for 'other side to say' on 'stay', 'review' and 'recall' applications.

Next hearing would be on my 'stay' application.....

My queries:-

I want to challenge the principle of "Court cannot stay execution of its own decree" as it it is not a an absolute/defacto precedent..........and it needs to be appended as 'unless the order is not obtained by fraud and 'in the interest of justice' no court is deemed powerless to to take remedial steps to correct 'miscarriage of justice' and hence sec 151 can be invoke to stay execution if such an incident is braught to to the notice of the court'

Please advise me and give necessary citation to support my 'stay' plea.... of Bomaby HC or SC. Thanks

Jamai Of Law (propra) 31 January 2011

Please do get it verified my answers from an expert as well.

I am also bit confused with CPC provisions and after feedbacks.

If you have filed for stay of execution as per Order 41 rule 5 then .............shouldn't it be in appellate jurisdiction? (although there is subrule 2 in rule 5 of Order 41: Stay by Court which passed the decree...............and anyways interim order is not appealable but still clarify from your lawyer.)

Also....sub rule 4 under rule 5 of Order 41: the Court may make an ex pane order for stay of execution pending the hearing of the application if provisions of sub rule 3 are fulfilled.

I am also confused whether this should apply to review jurisdiction or not...but my understanding is that.............your stay application should have been heard on the same day by Family Court!!! and without needing the 'say by opposite party'.