When dv case is stayed by hc


In the DV case, the court orders the husband to pay interim maintenance and a lumpsum amount to wife.husband pays some ampunt and Husband appeals u/s 29 of the act in the sessions court and comes to know that the process has not been followed and the MM has not looked into the matter properly and has given an biased jusgement...

Husband appeals in the HC u/s 482 of the CrPC....pointing out the mistakes of the court in passing that order and the case is stayed by the HC...

CAN THE HUSBAND NOW FILE AN APPLICATION TO RECOVER THE MONEY THAT HE HAS PAID?

IF YES? WHAT IS THE SECTION IN WHICH THE APPLICATION HAS TO BE MADE? 

PLEASE THROW SOME LIGHT

GAUTAM

 
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Senior Partner

@ Author


1.
NO


2. Refund of monies paid by a husband from a abala metro wife can happen only in once 8th. birth (if any) in Indian judicial wisdom context said it ! You got stay against maint. Order in DV case that is a news. Extend that stay till her hair turns grey it is construed as double happiness in a purush’s lifetime amidst gender biased Laws of the land.



3.
The 'stay' from HC you got because your side had plead 'in-justice' / error apparent on the face of impugned Order of Trail Court - Right! This is called prime facie application of mind  and when such prime facie stay granted by HC’s then they later don’t think right to look for opinions to snatch God's given RIGHTS of a abala nari and compensate to a purish as per my memory recall tells me ever happened in Indian judicial context. If you disagree then present to us ONE SUCH Judgment for review where such refund ever happened in matrimonial case and we will offer Irish coffee treat from our side J



4.
Infact the highest symbolical refund I ever managed till date is Rs. 1000/- towards valuation of trial court's per minute hearing cost whereas I was gunning for Rs. 6,500/- per minute hearing cost which is Delhi HC's self valuation if that could raise your morals in some ways for setting bar of Rule of court’s business one should first raise self standard’s bar – go for it to show a metro wife you mean business not time-pass J J J



“There’s enough in this world to satisfy ALL the men’s Needs, but there’s not enough in the universe to satisfy ONE metro woman’s Greed.”
[is the only essence of Bharat Ratna DV Ac, 2005]


Total likes : 1 times

 
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practicing advocate

It is only stay, on this ground you cannot recover the already paid mainenance.

 
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Originally posted by :Tajobsindia
"  go for it to show a metro wife you mean business not time-pass J J J "

@tajobs..you have stolen the words from my mouth....I just want that...I was told by several lawyers that the money will not come back...

But I dont know how to....Please show me the way..What application I need to file?

 

Regards,

Gautam

 
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Senior Partner

@ Author,


1.
In my opinion it was just a hint not spell :-)

 

 

2. However the process for 'refund' is prayed under S. 144 CPC - Restitution - It is a well established (means well recognised) statutory recognition of a pre-existing rule of justice, equity and fair play for parties to a lis - Even away from S. 144 CPC Courts have inherent jurisdiction to order restitution so as to do complete justice between the parties and this is where S. 151 CPC is the most widest inherent power a trial court wealds with. In other words what does an Application U/S. 144 CPC does is that if an injury is caused to a party, on account of an act of the Court, the Court is bound to undo that wrong in generic meaning.

 


3. When direction to deposit the money was given to you at that time Application U/S. 144 CPC could have been filed (hinted to be conditional the DH moneis being tenderd as your side should have shown inference - what if I establish that the order was wrongly passed then kar key in the minds of Judges is what I prefer giving inference during court practice procedures). In cases where S. 144 CPC does not apply Court can exercise its inherent powers to grant restitution where judgment debtor was dispossessed in execution of decree during pendency of his appeal against decree and during existence of order.

 

 

4. Scope of this advised provision is wide enough so as to include therein almost all kinds of variation, reversal, setting aside or modification of a decree or order. Once filed / prayed under this provision at trail Court it is duty of Court to place parties in the position which they would have occupied but for such decree or such part thereof as has placed at start of proceedings. 

 

 

5. Which in layman's understanding means Order passed by Court when found at the end not sustainable then a party gaining advantage which it would not have otherwise earned or the other party has suffered impoverishment which it would not have suffered but for the order of the Court then successful party is entitled to be refunded the money with interest in case plaintiff succeeds in his suit.

 

 


6.
It is only (well there are some different views of various HC's on this) the Court of first instance which passed the original order that is competent to order restitution hence wait for favourable Order from HC and then after consultation with your adv. probably use this provision at that stage reading down operating part of the HC Order. This is so because if a person is dispossessed under the colour of the decree and that decree is subsequently reversed, then he is entitled to restitution. When you paid against an interim order that interim order is construed as decree for the meaning of S. 144 CPC for a simple reason being that all interim orders gets merged with final Judgment as natural corallites and there posps the Decree in proceeding.  

 

 

So it all boils down to what the HC Order may come out at the end of your appeal.

 

 

Note:- Some of the best explanation / about doctrine of restitution came out form ALD HC. Refer / search official website of HC and you will understand better the term used here.

 

 

However it is all doable bass simple CPC process flow pata hona chahiye and ussee instant time mei use karney anna chahiye before / during going in for appeal however do file appeal too but before meeting DH payments in matrimonial cases this provision comes as a good rescue later is my short and long view. I am aware that once a person reaches HC and metro wife’s side says only one sentence at admission hearing “sahaib issney to paisse bhi nahi diye hai aur meri client kissi tarah gujara kar rahi hai”.At that time the appellant should show the S. 144 CPC Application true copy which he already filed at lower court then what happens is that the money even deposited as full and or part have larger chances for restitution under S. 144 CPC once the appeal operating direction carries some and or in part variation, reversal, setting aside or modification of trial court order. See a person approaches superior court only on the 'strength'of his peladings as he is some what convinced of his success and not for time-pass is my view ! But under pressure husband’s side rushes to superior courts missing the finer vast inherent power of restitution is what was my hint in earlier reply.


Re-read this reply and do some case studies of HC’s under this section you will understand the reasoning put forward via this reply. 

 
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Thanks for your reply tajobs

Gautam

 
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Advocate/ nadeemqureshi1@gmail.com

Tajobs is right and write very well

 
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Lawyer

Enjoy the stay. No question of refund

 
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Legal Evangelist - TRIPAKSHA

When Tajobs have written, nothing more needs to be added.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

 
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