1) judge has passed reasoned order dismissing execution application
2) it is sufficient that appeal is filed even if not numbered
3) wait for disposal of appeal
Shifting child custody in changed circumstances
Under S. 25 of G. W. Act 1890, by the judgment court awarded joint custody of the child, directed both parties to take psychological expert's help to prepare a parenting plan and allowed the child access to the husband during psychological consultation or preparation of the parenting plan. Accordingly, husband sent notice inviting wife to come with child psychological consultation but she neither responded to the notice nor brought the child for access as directed. Therefore, execution proceeding filed in the court but the court dismissed it saying that judgment holder preferring an appeal in the court. But the fact is that appeal is not still registered, it has only stamp number. Now the question is whether the judge is right in dismissing above execution proceeding. Can I move before the same court requesting shift of child custody in changed circumstances? What should be the form of the motion?
Asked 8 years ago in Family Law
Religion: Hindu
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11 Answers
Hello,
If the appeal has been filed and no stay has been granted then the order has to be executed.
File an appeal against the order wherein the execution case has been dismissed.
You will have have to get the same executed.
However if you are also aggrieved by the order then prefer an an application for modification of the order on the ground of changed circumstances.
Regards
Please answer other questions in the above query. Further, what will happen if I withdraw the appeal and inform in writing to the court in execution proceeding before dismissal of the execution proceeding?
Asked 8 years ago
as on date of filing of execution proceedings appeal should not have been pending
2) if any appeal is filed execution application is not maintainable
3) with draw the appeal then file application for execution
Hello,
this question of your's is not much clear. kindly elaborate
I guess I have answered rest of the question
You may explain the question in detail for concrete opinion.
Regards
Dear Client,
Even on filling, appeal, execution is maintainable until no stay granted by higher court.
Have u filed the appeal in the matter ? Than how can u seek execution for the order which u r assailing.
Either withdraw appeal or pursue in and no execution.
U should have filed contempt for non compliance of court order. But no use as u have filed the appeal.
Yes till there is a stay in appeal he can't dismiss the execution proceedings. The order is active. You can do as aforesaid.
No, Judge is not right for dismissing your execution as there is no stay granted by the court and the Judge is bound to execute the order passed by his/Her.
if there is any stay granted by the appellate court then only the Judge may be dismissed your execution petition.
File an application Under Section 151 of CPC for the shift of child custody.
Feel Free to Call
If there is an appeal pending then normally the trial court may not entertain the execution petition on the judgment passed by it.
If you once again approach the trial court in a different form also, you may get the same treatment as what was given to the EP, so better take up the challenge through her appeal itself.
Please answer other questions in the above query. Further, what will happen if I withdraw the appeal and inform in writing to the court in execution proceeding before dismissal of the execution proceeding?
If you withdraw the appeal then there is nothing for you to fight against it.
As a matter of fact, if she has file an appeal before higher forum, your appeal in the same trial court may not hold grounds.
The judge was not right in dismissing the execution proceedings as unless and until a stay had been obtained by the wife from the High Court, the order is still enforceable. Yes, you can trying moving an Application seeking interim custody of the child on account of the non-compliance of orders or file an Application for striking off the defence on the same ground.
