IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO. 4921 OF 2022

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Md. Nasir Uddin

... Petitioner

-Versus-

Most. Mehijabin Choa through her legal guardian Mst. Sarmin Sultana

... Opposite party

Mr. Md. Faridul Islam, Advocate

.... For the petitioner.

Mr. Rabiul Islam, Advocate

…. For the opposite party.

Heard and Judgment on 02.09.2024.

This Rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 20.06.2022 passed by the learned  District  Judge,  Satkhira  in  Misc.  Appeal  NO.1  of  2022  , affirming the judgment and order dated 07.12.2021 passed by the Judge of  the  Family  Sadar  Court,  Satkhira  rejecting  the  application  for reducing the decreetal amount and thereby directing the petitioner to pay the remaining decreetal amounting of Tk.3,931 out of total amount of Tk.1,41,500/- in 36 installment should not be set aside and or pass

such other or further order or orders as to this Court may seem fit and proper.

Facts  in  short  are  that  the  opposite  party  No.1  as  plaintiff instituted Family Suit No.19 of 2016 for recovery of maintenance for her minor girl Most. Mehijabin Choa who was born on 28.01.2014.

Defendant No.1 contested above suit by filing written statement alleging that at the time of the mutual divorce the maintenance of above minor girl was waived by the plaintiff.

At trial plaintiff and defendant No.1 gave evidence in support of the respective claim.

On  consideration  of  fact  and  circumstances  of  the  case  and evidence on record the learned Judge of the Family Court decreed the suit and fixed the maintenance of minor girl Most. Mehijabin Choa at the rate of Tk.4,000/- per month which was made effective from the date of filing of the suit on 15.03.2016.

Being aggrieved by above judgment and Decree of the Family Court defendant preferred Family Appeal No.39 of 2016 to the District Judge, Satkhira which was heard by the learned Joint District Judge, 1st Court, Satkhira who dismissed the appeal and affirmed the judgment and decree of the trial Court.

The  appellant  did  not  challenge  the  legality  and  propriety  of above judgment and decree of the Court of appeal below.

The  plaintiff  filed  Family  Execution  Case  No.23  of  2017  for realization  of  above  decree  and  the  Executing  Court  directed  the judgment debtor to pay total decreetal amount of Tk.1,41,500/ in 36 equal monthly installment.

Being  aggrieved  by  above  judgment  and  order  the  judgment debtor  preferred  Miscellaneous  Appeal  No.1  of  2022  to  the  District Judge,  Satkhira  who  dismissed  the  above  appeal  and  affirmed  the judgment  and  order  passed  by  the  learned  Judge  of  the  executing Court.

Being  aggrieved  by  above  judgment  and  order  of  the  learned District  Judge  above  appellant  as  petitioner  moved  to  this Court and obtained this Rule.

Mr.  Md.  Faridul  Islam,  learned  Advocate  for  the  petitioner submits  that  the  petitioner  is  an  employee  in  a  shop  and  he  is financially  incapable  to  pay  maintenance  of  minor  Most.  Mehijabin Choaat at the rate of Tk.4,000/- per month. The executing Court has directed the petitioner to pay Tk.3,931/- per month as maintenance to the above minor. But that is beyond the financial physical capacity of the  petitioner.  The  petitioner  can  pay  maintenance  to  above  minor Most. Mehijabin Choa at the rate of Tk.1,000/- per month.

On the other hand Mr. Rabiul Islam, learned Advocate for the opposite party submits that the rate of monthly maintenance for minor Most. Mehijabin Choa was determined after trial of the Family Suit and the same was affirmed on appeal. The petitioner accepted the judgment and  decree  passed  by  the  Court  of  appeal  below. As  such  he  cannot  raise  any  question  about  the  quantum  of  the maintenance fixed by the trial Court.

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

It is admitted that for realization of maintenance of minor girl Most. Mehijabin Choa her mother as plaintiff instituted Family Suit No.19 of 2016 which was decreed on contest and the trial Court granted her monthly maintenance at the rate of Tk.4,000/- and against above judgment and decree the petitioner preferred Family Appeal No.39 of 2007 which was dismissed on contest. The petitioner did not challenge the legality and propriety of above judgment of the Court of appeal below and the same reached finality.

As such the monthly maintenance of Tk.4,000/- granted by the Family Court for minor Most. Mehijabin Choa. The petitioner cannot challenged above quantum of maintenance fixed by the trial Court and affirmed by the Court of appeal in this execution proceedings.

I  am  unable  to  find  any  substance  in  this  application  under Section 115(1) of the Code of the Civil Procedure and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is discharged.

However, there is no order as to costs.

The order of stay granted at the time of issuance of the Rule is recalled and vacated.   

Send down the lower Court’s record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER