Somasekhar Vs. State of Karnataka

.....stated in sub-section (3) of section 126 and not application under section 125(1) or 125(3) of the code. this shows that the legislature intended to include all applications under sections 125 of the code within the purview of section 126(3) of the code. section 128 of the code only empowers the magistrate within whose jurisdiction the husband resides to enforce the order of maintenance passed by another magistrate. so, the execution has to be only under section 125(3) of the code. therefore, the court can grant the costs in executing the order under section 125(3) of the code also in view of section 126(3) of the code. - order 21, rules 95 & 96: [b.v. nagarathna, j] difference between delivery of the property in possession of the judgment debtor and delivery of possession of property in occupancy of tenant held, the major difference between the two rules is that under order 21, rule 95, actual delivery of possession is taken and under order 21, rule 96, symbolic delivery of possession is taken. invoking of such rules would depend upon the person who is in actual possession either through the judgment-debtor or through any independent right. depending upon such circumstances, application has to be made by the auction purchaser. in the instant case, when the first application was made under order 21, rule 9, what was sought was only symbolic possession which was allowed. it is not in dispute that such an application was made within the prescribed period of limitation. thereafter, the application has been made under order 21, rule 96 seeking actual delivery of possession. three situations are stipulated in which symbolical possession can be granted. they are (1) under order 21, rule 1 (2) order 21 rule 36 (2) and (3) order 21, rule 96. symbolical possession is delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming the substance of the decree. rules 35 and 36 pertain to cases where decree for possession of..........arises for determination in this proceeding is whether costs could be awarded by the court in an execution proceeding for enforcement of the order passed under section 125 of the code of criminal procedure 1973 (for short the code).2. the brief facts necessary for the decision of the said point may be briefly stated as follows :-3. the petitioner is the husband of the second respondent. respondent-2 filed an application in crl. mis. no. 44/81 in the court of the chief judicial magistrate, dharwar against the petitioner for maintenance under section 125 of the code and she was awarded maintenance at the rate of rs. 100/- per month as agreed to by the parties. the husband failed to pay the amount as per the said order. so the wife filed an application in crl. misc. no. 198/84 under section 125(3) of the code for enforcement of the said order of maintenance. according to her, the husband was due to pay a sum of rs. 1200/- towards maintenance. she also claimed costs of the execution proceedings. the learned magistrate issued distress warrant for the amount of maintenance and costs of rs. 28/- holding that he had power to award costs also in an application under section 125(3) of the code. the husband paid rs. 1,200/ towards maintenance. he filed criminal revision petition no. 61/85 in the court of the sessions judge, dharwar against the order awarding costs of rs. 28/-. the said revision petition was dismissed by the learned first additional sessions judge. dharwar, the husband had approached the sessions judge in revision against the order passed by the chief judicial magistrate, dharwar and so this revision petition by him is not maintainable under section 397(3) of the code.4. according to section 126(3) of the code the court in dealing with applications under section 125 shall have power to make such order as to costs as may be just. it is pertinent to note that only section 125 is stated in sub-section (3) of section 126 and not application under section.....