HARSH V. RAI Vs. JEEVARATHNAKARA ALVA AND ORS.

JUDGEMENT

(1.) This matter coming up for orders on I.A. No. 1 for interim stay, the main matter, itself is taken up for final disposal and disposed of by the following order.

(2.) The petitioner is the judgment-debtor in the Court below. He is aggrieved by the order passed by the learned II Additional Civil Judge, Mangalore, in Execution Case No. 17/1987 on his file. The execution is taken out by the respondents to enforce payment of maintenance in O.S. No. 65/1941. The execution is for realisation of annuity payable as on 1-10-1976, 1-10-1977 and 1-10-1978. When the execution petition was pending, the defendants-judgment-debtors obtained a modification of the decree on 24th Nov., 1987 in O.S. No. 164/1979 by which the annuity at the rate of Rs. 3500.00 with effect from 1-3-1974 was directed in place of earlier Rs. 7/100.00. In that circumstance, the judgment-debtor claimed that he had paid earlier at the rate of Rs 7500.00, in 1974 and 1975 and therefore if adjustment is given to the payment made in excess of the modified decree he will not be liable to pay anything for the years 1-10-1976, 1-10-1977 and 1-10-1978 except a small sum and therefore such adjustment must be made in accordance with Rule 2(a) of Order 21 of the C.P.C. But the Court rejected that plea on the ground that in the decree that was being executed and it was marked as Ex. D1. There was no evidence of excess payment and therefore the decree-holder was liable to realise the entire amount at the rates specified in Ex. D1. Aggrieved by the same, the present revision petition is preferred inter alia contending that once the decree is modified with effect from 1-3-1974 maintenance should be paid only at the rate of Rs. 3500.00 per annum; it binds both the parties and execution petition pending was with reference to claim for three years any amount paid earlier by the judgment-debtor to the decree-holder that amount is liable to be adjusted.

(3.) No doubt, the proposition is attractive. But the. fact nevertheless remains that subsequent to the period of the execution, no amount is said to have been paid by the judgment-debtor even at the rate modified towards maintenance to the respondents. In other words, any excess payment made by the judgment-debtor is liable to be adjusted by the decree-holder towards what is owed under the decree for period even subsequent to 1976-77 and 1977-78. In cases like this it is not advisable to compartmentalise each execution petition or each year in which the maintenance falls due and compel the decree-holder or decree-holders to take out execution in respect of all and every amount due and payable by the judgment-debtor. In equity if judgment-debtor may claim adjustment in the amounts paid earlier in excess of the modified amount of maintenance, by the same token, the decree-holder also has a right in equity to retain the excess payment made towards amounts that have fallen due for the years subsequent to 1978.