CRLMC/3658/2025 of ALOK SWAIN Vs KALPANA SWAIN on 8 September 2026

ORDER

08.09.2026 Order No.

01.

1. This matter is taken up through Hybrid mode.

2. Heard Mr. P.K. Rout, learned counsel appearing for the Petitioner as well as Mr. Amitav Tripathy, learned counsel appearing for the Opposite Party-Wife. Perused the CRLMC application as well as the prayer made therein.

3. By filing the present CRLMC application under Section 528 of BNSS, 2023, the Petitioner (Opposite Party in Execution Misc. Case No.24 of 2020, arising out of D.V. Misc. Case No.118 of 2012, pending in the court of learned ASJ(W), Jagatsinghpur) has approached this Court with a prayer to set aside the order dated 24.06.2025, at Annexure-1, passed by the above named court in the aforesaid Execution Misc. Case.

4. Learned counsel for the Petitioner, at the outset, contended that the order dated 24.06.2025 has been passed without providing an opportunity of hearing to the present Petitioner, directing him to pay arrear maintenance of Rs.3,60,000/- to the Opposite Party. He further contended that the learned Executing Court has also issued a Distress Warrant and a conditional N.B.W. against the present Petitioner vide order dated 22.08.2025 in the aforesaid Execution Case.

5. Mr. Amitav Tripathy, learned counsel appearing for the Opposite Party-wife, on the other hand, contended that as against final order passed in D.V. Misc. Case No.118 of 2012, the Petitioner has already preferred an appeal bearing Criminal Appeal No.23 of 2025, which is stated to be pending before the learned District & Sessions Judge, Jagatsinghpur. Such appeal has been presented on 09.07.2025. Since the present Execution Misc. Case, which arises out of the abovenoted D.V. Misc. Case, is the subject matter of dispute in the present application under Section 528 of BNSS, 2023, learned counsel for the Opposite Party contended that as against such final order, the Petitioner has already preferred an appeal as provided in the statute. In such view of the matter, learned counsel for the Opposite Party contended that the present application is not maintainable and that the Petitioner be directed to approach the First Appellant Court by filing an appropriate application.

6. Taking into consideration the submissions made by the learned counsels appearing for the respective parties, on a careful examination of the background facts as well as the issue involved in the present application, this Court is of the considered view that since the Petitioner has already approached the learned District & Sessions Judge, Jagatsinghpur by filing Criminal Appeal No.23 of 2025, the present CRLMC application under Section 528 of BNSS,

2023 is not maintainable.

7. Accordingly, the present CRLMC application is disposed of by granting liberty to the Petitioner to approach the learned First Appellate Court in Criminal Appeal No.23 of 2025. In the event any such application is filed, the learned First Appellate Court shall consider the application strictly in accordance with law and dispose of the same as expeditiously as possible, after providing an opportunity of hearing to the parties. The parties are directed to appear before the learned District & Sessions Judge, Jagatsinghpur on 21st September, 2026.

8. Accordingly, the CRLMC stands disposed of.

( Aditya Kumar Mohapatra )

Judge

Debasis

Digitally Signed Signed by: DEBASIS AECH Designation: SECRETARY Reason: Authentication Location: ORISSA HIGH COURT Date: 12-Sep-2026 13:44:30 Signature Not Verified