• Despite magistrate order widow of owner of flat not allowed by occupants

The widow was working in army and hence mostly posted out of town in 30 years .only 3 years she was in Delhi. Her husband who purchased the flat and in which she also made contribution form her salary , died in 2006 while she was posted outside. 
Taking advantage of her outstation posting her husbands elder brother started living there with wife and very young children in mid nineties. In 2015 she retired but she was not allowed to enter house. Actually brother of her husband produced a will in his sons favor by deceased. She filed eviction suit and for declaration of will null and void and will probate is also under test by same court in counter suits 
Meanwhile having no house to live in Delhi she filed complaint in DV act section 19 and also application under 23 for interim residence order in a portion. initially it was declined.But session judge has allowed..But order given by magistrate to allow entry even to PO refused by occupants .No fear. What action now by magistrate ? also Can high court stay such orders under DV act ? specially residence right related .
Asked 14 days ago in Family Law from Delhi, Delhi
Religion: Hindu

file petition in HC for contempt of court against occupants for failure to comply with orders passed by sessions court 

 if occupants file appeal against order then said order can be stayed by HC 

Ajay Sethi
Advocate, Mumbai
56959 Answers
3456 Consultations

5.0 on 5.0

Hello,

1) She can move an Execution Petition before the Magistrate for getting the order implemented. The occupants will be compelled to comply by the order.

2) The High Court will go by the merit of the Appeal. In the normal circumstances the High Court is unlikely to interfere with the order of the lower court allowing residence order.

S J Mathew
Advocate, Mumbai
2365 Answers
110 Consultations

5.0 on 5.0

1. The order of court needs to be implemented which the court is competent enough to execute its own order.

2. So if the petitioner is not allowed to enter into the house  even after passing of the order, she cna file a petition for execution of the order by Execution Case.

3. So file the execution case. 

Devajyoti Barman
Advocate, Kolkata
15387 Answers
211 Consultations

5.0 on 5.0

1. This is contempt of court. Initiate proceedings for contempt against the contemnors by filing a petition in this regard. 

2. The HC can surely stay orders under DV Act but seldom it puts a stay on right to residence. 

Ashish Davessar
Advocate, Jaipur
25198 Answers
706 Consultations

5.0 on 5.0

The court has granted you a right to live there till the disposal of the suits related to the property. Therefore you have the right to reside there and if they dint let you be there then that is wilful disobedience which comes under contempt of court and in a punishable offence.

File a contempt application against the brothers and the persons living there.

Regards 

Rahul Mishra
Advocate, Lucknow
2410 Answers
9 Consultations

5.0 on 5.0

You can file petition in high court for contempt of court. 

Mohammed Mujeeb
Advocate, Hyderabad
4635 Answers
3 Consultations

4.5 on 5.0

1) If the WILL is fake than she must get house back on inherent rights plus her brother-in-law has to vacate flat on residential rights as she does not have house in Delhi.

Ganesh Kadam
Advocate, Pune
5475 Answers
40 Consultations

4.9 on 5.0

1) draw attention of magistrate to fact that his orders are being flouted with impunity 

 

2) she should wait for magistrate action 

 

3) in alternative take out contempt of court proceedings against the occupants for having flouted court orders 

Ajay Sethi
Advocate, Mumbai
56959 Answers
3456 Consultations

5.0 on 5.0

You can not get remedy at your own whims and fancy.

The court are administered by settled law and convention.

It doe snot make any difference whether you you want immediate action or not.

When the law is clear on the subject , you will have to follow the route as advised above. 

Devajyoti Barman
Advocate, Kolkata
15387 Answers
211 Consultations

5.0 on 5.0

This is a clear cut case of contempt of court. She should file a petition for contempt before the magistrate and also execution. Magistrate exercising powers under DV Act has the same power as a civil court and is competent to execute his order. 

Ashish Davessar
Advocate, Jaipur
25198 Answers
706 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that she has been given order of the court to be accompdated in the subject property.
  2. When there is a court orrder, then we always suggest to not to avoid it as it may order for contempt of court.
  3. In fact, any can be challenged before the appellate court of law so do the present one also.
  4. But, getting success for stay, would depend upon the law and circumstances of the present case.

Sanjay Baniwal
Advocate, South Delhi
3036 Answers
6 Consultations

5.0 on 5.0

Dear Querist

whether she is owner of the property or not it is a question pending before the Court so at this stage it can not be say that she is the owner of that property until the court declare that Will as Null & Void. 

 

if there is any protection order passed by the Magistrate under Domestic Violence Act-2005 and the opposite party violate that order then the Magistrate has power to send him behind the bar under section 31 of Protection of Women From Domestic Violence Act-2005.

 

it is true that she is only class 1 heir of her Husband but when there is a Will exits then till the declaration of null and void of that Will, she can not be claimed.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5111 Answers
242 Consultations

4.9 on 5.0

1) She has to wait the till WILL order gets from civil court and prove its fake. One should try to get  WILL case order  from court earliest, because the other vacate order is in her hand.

2) Or ask court to vacate the flat as order is passed and keep flat empty or court custody till further WILL case order result are out. Means for time being nobody will live in the flat it will be seal by court.


Further you can file case as per The Transfer of Property Act, 1882, Section 53 Fraudulent transfer and 53A  Part performance.

I would like to know you whose name the property is right now.

Ganesh Kadam
Advocate, Pune
5475 Answers
40 Consultations

4.9 on 5.0

If she has residence rights no one can stop her forcibly. It will be contempt of court.DV Act has wide powers.

Prashant Nayak
Advocate, Mumbai
4875 Answers
3 Consultations

4.8 on 5.0

If entry to her is denied despite court order, then she can file an execution petition seeking police protection to enter into the house or she can file a contempt of court petition against those people who deny her entry into the house.

T Kalaiselvan
Advocate, Vellore
46951 Answers
557 Consultations

5.0 on 5.0

Since the probate of will caase and the other cases are pending there is no possibility for claiming title to the property at this stage.

As far as the DV case order, she may file a petition to execute the court order with the help of police and gain an entry into  a portion of the house.

 

T Kalaiselvan
Advocate, Vellore
46951 Answers
557 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer