Intellectual Property Rights: Practice and Drafting by Adv Gautam Matani. Register Now!
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swagath (md)     01 September 2012

Dv act maintenance

Dear members

i am having a doubt

my wife has filed a Dv case and the MM has orderd ex party without issuing  notice of 5000/= and after i recivved notice i challenged the order and the session/revisnal court has given a stay on condition to deposit 50% to court. this was on 06/06/2010 and i depsited the amount for 5 months nad later i didnot depsoit as i lost job  and the respondent was dispersing the without hte order of the appeal court. and once the respondent counsel said that they are not depositing the amount then the session judge said i will order on merits in the year  june 2011 but till now she has not finalised the appeal now i filed a crpc 91  for getting documents to prove that she is working and the respondent counsel has accepted that she is working and now the appeallate couet want to hear on that application , now the respondent that wife lawyer say that there is due of arrears and it should be paid and suddenly the sessions judge said to pay the arrears and asked for memo of calculation.

my question:

1. has the session judge has power to execute the order for arrears

2. now as i have already proved that she is working and they have accepted still should i pay or what remedy i have

3.what are the power of the appellate court

4. what about the stay

5. as it is exparty and i dont have means and she has means working

please tell me.



Learning

 2 Replies

FEROZE KHAN (ADVOCATE)     02 September 2012

You could have pressed for hearing the matter in the trial court itself, without rushing to file an appeal.On your appearence and after filing Objection, the  interim oreder could have been altered/lifted in the trial court itself. Whether you have availed that opportunity or you rushed with an appeal is not clear. On admitting the appeal, in PWDV Act, the appellate court caln impose conditions like deposit of arreares.

Prooving/disprooving etc. has to be before the trial court.What prevented you to do this before the trial court, so that a favourable order could have been there in your favour. what about the fate of the case in the court of original jurisdiction, whether that reached a finality.

For rest of thge things,  you may discuss with your advocate, who is more aquainted with the case.

Anish Thakur 7018812737 (advocate)     02 September 2012

respecetd querist,

no doubt session jujge have powers to execute the orders of arrears but when the stay order is granted on the same order then only appelate court can pass such orders to supercede the orders of lower court.you have to file the petition under 127crpc ,where as the exparty order is concerned you can file petition to set aside the exparty decree before going for 127Crpc


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