The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.431 of 2023 Sanjay Kumar Samal Laxmipriya Jena @ Samal -versus- …. …. Appellant Respondent Learned advocates appeared in the case: For appellant For respondent : :
Legal Reasoning
Mr. K.C. Sahu, Advocate Mr. D. Mohapatra, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- J U D G M E N T Date of hearing and judgment: 25th July, 2024 ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Sahu, learned advocate appears on behalf of appellant and Mr. Mohapatra, learned advocate for respondent. Appellant was husband and respondent, wife in the marriage dissolved by judgment dated 31st March, 2018. 2. The Family Court in dissolving the marriage directed for payment of permanent alimony at ₹14,00,000/-. Appellant had Page 1 of 5
Decision
preferred appeal (MATA no.64 of 2018). The appeal was disposed of by co-ordinate Bench on 9th February, 2023. Controversy between the parties in this appeal is regarding claim for interest arising out of direction made in said order dated 9th February, 2023. We reproduce below paragraph-6 from the order. “On this question, we have interacted with the learned counsel for the parties and we understand that to maintain the standard of life the Respondent had enjoyed in the matrimonial home, she needs additional resource beyond what she earns. It may also be noted that the only daughter of the parties is in the custody of the respondent. As such, we direct the Appellant to pay a sum of Rs.10,00,000/- (Rupees ten lakhs) as the permanent alimony to the Respondent and the said amount shall be paid within a period of four months from today. It is made abundantly clear that, if the said amount is not paid within the stipulated period, the said amount shall carry interest @ 6% from the date of filing of this appeal i.e. 20.04.2018. That apart, the decree that will be passed in this appeal shall be treated as the money decree for purpose of realization, in the event of default in payment. We would hasten to add that from the date when the said amount, on account of the permanent alimony, will be paid, the respondent will not be entitled to claim any further maintenance MATA no.431 of 2023 Page 2 of 5 allowance from the Appellant. We would also observe that, we have not decided any amount on account of maintenance of their only daughter. We expect that the Appellant shall take care of financial need of his daughter for a good upbringing. It is the legal duty of the Appellant.” (emphasis supplied) 3. It is seen that direction for permanent alimony at ₹14,00,000/- originally made was reduced to ₹10,00,000/-. Direction of co-ordinate Bench was for appellant to pay the money within four months from date of said order. Further direction was made to ensure compliance. The further direction was, there would be interest payable in event of failure to pay within four months, calculated at 6% from date of filing the appeal, i.e., 20th April, 2018. 4. We are convinced that default direction for payment of interest was made to ensure compliance because by subsequent paragraph in said order dated 9th February, 2023, co-ordinate Bench made it clear that upon receiving modified amount of permanent alimony, respondent would thereafter have no claim against appellant. 5. Mr. Sahu submits, his client was aggrieved by said order dated 9th February, 2023. He filed petition for special leave to appeal, which was registered and numbered as SLP (C) no.12983 of 2023. The petition Page 3 of 5 MATA no.431 of 2023 came up for hearing on 6th July, 2023, when it was dismissed. His client immediately thereafter obtained demand draft dated 10th July, 2023 and deposited same in the Family Court on 12th July, 2023. He submits, his client exercising his right to seek leave to appeal to the Supreme Court cannot be construed as his conduct of willful default. 6. Mr. Mohapatra submits, his client is not concerned with what remedy appellant may have pursued. She had no notice of appellant seeking to move the Supreme Court. She waited for being paid permanent alimony as modified in appeal. It was not paid within time directed. She therefore, applied for execution. Impugned order dated 12th July, 2023 was duly made. There is no error for interference in appeal. 7. The appeal was presented on reported delay. Upon finding good service on the application for condonation of delay, we condoned it on 26th February, 2024. Pursuant thereto we directed issuance of notice of appeal. Respondent entered appearance upon service of notice of appeal. The appeal has been heard. 8. We accept submission made on behalf of appellant that he had a right to prosecute his remedy in seeking leave to appeal to the Supreme Court. Article 136 in the Constitution of India empowers the Supreme Court to admit appeal upon grant of special leave. Though it does not MATA no.431 of 2023 Page 4 of 5 appear from order dated 6th July, 2023 of the Supreme Court, when the special leave petition was filed but in usual course of business, a special leave petition is filed and listed before the Bench in its turn. On query made Mr. Sahu submits, the special leave petition was filed on 8th May, 2023. It was within the four months period. Appellant’s bonafide in pursuing his right to move the Supreme Court is convincing because immediately upon dismissal of the petition on 6th July, 2023 he obtained demand draft on 10th July, 2023 and deposited same on 12th July, 2023. In the circumstances, we record execution, discharge and satisfaction of order dated 9th February, 2023 in MATA no.64 of 2018. We direct the Executing Court to accordingly dispose of Civil Execution Case no.11 of 2018. 9. The appeal is disposed of. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Page 5 of 5 Radha/Gs Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: ohc Date: 26-Jul-2024 13:24:58 MATA no.431 of 2023