Whether Pension Can Be Attached In Execution Of Maintenance Order Granted To Wife? Punjab & Haryana High Court Refers To Larger Bench

The Punjab & Haryana High Court has referred the question to larger bench on whether pension of the judgement-debtor in execution proceedings arising from maintenance order can be attached.

Justice Harpreet Singh Brar explained that neither the maintenance allowance granted to the wife or minor children can be considered to be a 'debt' nor the wife or minor children can be considered to be 'creditors', by any stretch of imagination.

Therefore, the exemption under Section 11 of the Pension Act and Section 60 of CPC cannot be extended to the petitioner/judgment-debtor in execution proceedings. In view of the object of Section 125 Cr.PC. (now Section 144 of BNSS), the petitioner-husband is bound to pay the maintenance amount as ordered by the Court, the Court added.

It said that the maintenance is a personal liability and the husband cannot be allowed to avoid it by seeking refuge of Section 11 of the Pension Act or Section 60 of CPC, as it would be against the interest of justice.

However the Court came across the conflicting decision of the co-ordinate bench in Om Parkash Vs. Javitri Devi, [2018(1) DMC 462] wherein a contrary view was taken and it was held that the pension of a person is exempt from attachment for the realisation of the maintenance amount in view of Section 11 of the Pension Act and Section 60 of CPC.

 Disagreeing with the Om Prakash's case, the Court framed the following question and referred it to the larger bench.

"Whether the pension of the judgement-debtor in execution proceedings, arising from litigation for maintenance, is exempt from the attachment to realise arrears in terms of Section 11 of the Pension Act and Section 60 of CPC?."

The Court was hearing a revision plea against an order of a Family Court, whereby half of the amount lying in the pension account of the petitioner, as on the date of passing of the impugned order, was ordered to be attached in order to recover the maintenance amount, which has fallen in arrears.

The petitioner was directed to pay Rs.7,000 per month to his wife and Rs.4,000 per month to each of two minor sons as maintenance. Subsequently, upon non-payment of the maintenance amount, the respondents preferred an execution application on 16.02.2019 for recovery of the amount of arrears amounting to Rs.12,15,000.

In the execution proceedings, it was observed that the petitioner has not paid a single penny to clear the maintenance amount, which has fallen in arrears.

Thereafter, the Family Court, directed the attachment of half of amount lying in the pension account of the petitioner till further orders for the realisation of arrears of maintenance towards his wife and children.

After examining the submissions, the Court rejected the contention of the petitioner that the Family Court do not have jurisdiction to entertain the execution application.

"A bare reading of Section 7(2) of the Family Courts Act indicates that learned Family Court had complete jurisdiction to entertain the execution application filed by the respondents and as such, the averments put forth by the learned counsel for the petitioner cannot be taken on board," it added.

However, the contention advanced by petitioner's counsel that the execution proceedings for realization of the entire amount are barred by limitation was accepted.

"Section 125(3) of Cr.P.C. (now Section 144(3) of BNSS) stipulates that an execution petition for recovery of the arrears of maintenance must be confined to one year immediately preceding the date of filing the petition. In the present case, the execution application was moved on 16.02.2019 and therefore, the respondents can only seek recovery of arrears as accruing from 17.02.2018," observed the Judge.

In the light of the above, the Court upheld the impugned order to the extent of attachment of pension account of the petitioner for realisation of arrears of maintenance.

"However, the execution proceedings can only be pursued for arrears accrued in the year preceding the date of the filing of the execution petition i.e. for the period from 17.02.2018 to 16.02.2019," added the Court.

Ms. Komalpreet Kaur, Advocate for Mr. Deepak Arora, Advocate for the petitioner.

Title: AXXXX v. XXXXX [CRR(F)-1468-2023 (O&M]

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