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
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 5 years ago in Family Law
Religion: Hindu
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16 Answers
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.
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.
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.
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
You can file petition in high court for contempt of court.
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.
My query is of immediate short term interest.Kindly read it again 1.Will is under contest and its probate once recalled by local court and now it is under civil trial .Her eviction suit and declare will null and void also attached as counter case .Both are pending .Her husband died in 2006 since then she is giving notices to vacate house .It is case of property grabbing and live rent free in Delhi 2.But house is occupied by her husbands relatives on basis of this un probated will that is nothing but piece of paper . 3.She moved magistrate under DV Act u/s 19 for and also filed application u/s 23 for interim residence order for a portion only in view of her retirement . Which she succeeded to get now.But not allowed to enter still despite magistrate sending Protection officer .Ca occupants do that ?So what magistrate can, or will do next .Is magistrate having adequate powers to secure her custody of part accommodation as sought through police, till the title is determined in Will case( that is what session judge has ruled).She has no home in Delhi despite being owner of this house ? what is her best option? wait for magistrate action? or take other action.Will is unlikely to succeed too as it is done under pressure and unqualified and abnormal.she is only class 1 heir of her husband the owner of house
Asked 5 years ago
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
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.
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.
- 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.
- When there is a court orrder, then we always suggest to not to avoid it as it may order for contempt of court.
- In fact, any can be challenged before the appellate court of law so do the present one also.
- But, getting success for stay, would depend upon the law and circumstances of the present case.
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
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.
If she has residence rights no one can stop her forcibly. It will be contempt of court.DV Act has wide powers.
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.
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.