Zeyauddin Ahamad v. Both

1. The petitioner is aggrieved by an order dated 08.10.2012 passed by learned Principal Judge, Family Court, Muzaffarpur in Execution Case No. 01 of 2008 whereby he has enhanced the amount of monthly maintenance of rupees one thousand per month, which was granted in favour of the Respondent on the basis of a compromise between the parties, to rupees five thousand per month on the ground that cost of living has gone up from the date, the order of maintenance was earlier passed.

2. It has been contended on behalf of the petitioner that Title Suit No. 59 of 2000 was file by the Respondent No. 1, the wife of the petitioner, and their minor children seeking a permanent injunction, restraining the petitioner from transferring Schedule-1 Patna High Court CWJC No.23193 of 2012 (3) dt.27-09-2013 P2/5 property, which is the house in which the parties used to reside. The dispute was referred to Lok Adalat and on the basis of compromise entered between the parties on 22.02.2006, the Lok Adalat passed an award on 19.03.2006. The compromise petition is part of the award. The said compromise petition has been annexed as Annexure-3 to this application. In terms of the compromise, it was agreed upon between the parties that the petitioner would not alienate the suit property during his life time and after his death, his son Md. Tanweer (now major) will acquire title over the said property. It was also agreed upon that the petitioner would pay monthly maintenance of rupees one thousand per month for the Respondent No. 1. It appears that execution Case No. 1 of 2008 was filed for executing the award of Permanent Lok Adalat. The petitioner, thereafter, had filed an application to stay execution on certain grounds which was refused by the Court of learned Principal Judge, Family Court, Muzaffarpur by an order dated 25.03.2009 with the following observation:- “The compromise has not been vitiated by fraud, misrepresentation, misunderstanding or mistake. The decree passed thereon has the binding force. A judgement by consent is intended to stop litigation between the parties. Just as much as a judgement resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an Patna High Court CWJC No.23193 of 2012 (3) dt.27-09-2013 P3/5 estoppel. Moreover the case has already been finally disposed of and I do not find any valid ground to review the same.”

3. Thereafter, Respondent No. 1 filed an application on

24.10.2011 for enhancement of monthly maintenance from rupees one thousand to rupees ten thousand per month. The said prayer was opposed by the petitioner in the Court below on two grounds. Firstly, the compromise decree didn‟t contain any provision for enhancement and secondly, enhancement could not be ordered under Section 127 of the Criminal Procedure Code, 1973 in the facts of the present case. The petitioner in the Court below contended that the terms of the award, after having attained finality, could not be altered.

4. By the impugned order, however, the Court below thought it fit to enhance the amount from rupees one thousand to five thousand per month. It has been contended on behalf of the petitioner that as per the terms of compromise, the entire house has been left at the disposal of the Respondent No. 1, son and the daughter. There is no allegation that the petitioner ever attempted to act in breach of that part of the compromise. He further submitted that the son Md. Tanweer has attained majority and, therefore, there is no question of any maintenance for him. As regards Respondent No. 1, it has been submitted that in any event she can‟t claim maintenance more than that granted in terms of the Patna High Court CWJC No.23193 of 2012 (3) dt.27-09-2013 P4/5 compromise. It has been also submitted that in compliance of the award of the Lok Adalat based on compromise between the parties, the petitioner is ready to bear the expenses for the marriage of the daughter Tarannum.

5. He has vehemently submitted that the Court below did not have any jurisdiction in the facts and circumstances of the case to enhance the maintenance amount, contrary to the terms of the compromise.

6. Learned counsel appearing on behalf of the Respondents on the other hand has submitted that the Court below rightly enhanced the amount of maintenance as the cost of living has gone substantially high during the operation of the earlier order awarding maintenance of a sum of rupees one thousand per month. He submits that in such circumstance, the Court below rightly enhanced the maintenance amount.

7. After having considered rival submissions, I find force in the contention made on behalf of the petitioner. As per the terms of compromise Respondent No. 1 could not claim any amount higher than the one fixed in the compromise petition which was accepted by both the parties. The maintenance awarded to the Respondent No. 1 was certainly not under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „the Code‟) Patna High Court CWJC No.23193 of 2012 (3) dt.27-09-2013 P5/5 rather it was passed in a Civil Suit seeking permanent injunction based on compromise between the parties before Lok Adalat. The executing Court therefore, did not have any power to alter or vary the award passed by Lok Adalat. Learned counsel for the petitioner is therefore, right in his submission that learned Court below could not have applied Section 127 of „the Code‟ for alteration of the maintenance amount granted to the petitioner in terms of the compromise petition.

8. In view of the above, I hold the order dated 08.10.2012 passed by learned Principal Judge, Family Court, Muzaffarpur in Execution Case no. 1/2008 to have been passed without jurisdiction. The same is accordingly set aside.

9. This application is accordingly allowed. Saif/- (Chakradhari Sharan Singh, J.)