SANKARAN PANKAJAKSHAN Vs. NARAYANA PILLAI VELAYUDHAN PILLAI

JUDGEMENT

(1.) In a suit of 1085 a decree was passed on 16.10.1086 declaring the right of each of the six plaintiffs therein to get maintenance at a specified rate from defendant 1 who was the karnavan of their tarwad and from their tarwad properties and also allowing them to recover arrears of maintenance till date of decree. In pursuance of this decree plaintiffs realised not only the arrears of maintenance till date of decree but also future maintenance from the date of decree till 22.11.1101. Out of the future maintenance thus realised by them they had to refund a sum of S. Rs. 465 Ch. 2 Ca. 8 on the application of some of the members of the tarwad since the said sum was realised by the sale of properties in respect of which those members had special rights. From 21.5.1103 plaintiffs are not entitled to get any maintenance under this decree for on that date a suit for partition of the tarwad properties was instituted and the rights of the parties subsequent to 21.5.1103 are governed by the decree in that suit. For realising the maintenance due to them from 22.11.1101 to 21.5.1103 and also for recouping the amount of Rs. 465 Ch. 2 Ca. 8 which they had to refund out of the amount they realised on account of the maintenance for the period before 22.11.1101 plaintiffs filed an execution petition E.P. No. 182 dated 15.12.1951 A.D. In this execution petition they also sought to recover the costs which they had incurred in execution till then. On the objection of defendant 8 the court below dismissed the execution petition holding that the plaintiffs had no right to realise future maintenance in execution of the decree. The plaintiffs contention that the execution court had on previous occasions allowed them to realise future maintenance in execution of the decree did not also find favour with the learned Judge. He dismissed that contention saying that if the plaintiffs had realised any amount wrongfully they might retain the same until they were asked to disgorge in appropriate proceedings and that he could not allow a mistake to be repeated. According to him the decree is merely declaratory and is not therefore executable so far as future maintenance is concerned. Plaintiffs have therefore filed this appeal.

(2.) There is no dispute as regards the terms of the decree. In the first part of the decree it is declared that each of the plaintiffs is entitled to get maintenance at a specified rate from defendant 1 and has a charge for the same on the tarwad properties, and in the second part a decree is given to the plaintiffs for the amount due to them on account of past arrears till date of decree. The tarwad properties over which the plaintiffs have a charge for maintenance are also specified in the decree. The view that such a decree is not executable in respect of future maintenance accruing after the date of the decree is opposed to the weight of authorities. The Madras High Court has held in Abdul Muhamad Rowther v. Seethalakshmi Ammal ( AIR 1931 Mad. 120 ), that where a decree makes maintenance a charge on specified properties the decree holder is entitled to realise the maintenance by executing the decree without having recourse to any suit. Similarly the Patna High Court also has held in Radhakrishna v. Mt. Bechni Debi, AIR 1937 Patna 654:

(3.) It may also be noted here that the court below has not adverted to the plaintiffs prayers in the execution petition for recovering the amount of Rs. 465, Ch. 2, Ca. 8 and interest thereon and the execution costs. When the case goes back the plaintiffs prayers in respect of these two items also must be considered and dealt with by the court below.