PHILIPOSE THRESSIAMMA Vs. SCARIA CHINNAMMA

JUDGEMENT

(1.) THE 1st defendant has come up in revision challenging an order in execution directing attachment of all her rights in the southern half of a certain item of property which had been set apart to her (together with defendants 2 and 3) in a partition decree. That decree is under execution in regard to the money portion. THE money decree is passed only against the 1st defendant and therefore cannot be executed against defendants 2 and 3. So far as the 1st defendant herself is concerned, it is executable, but the question is what right or interest in the property is attachable and saleable; for, she has two distinct interests in the property and the controversy arising in the case is as to whether her right to take the usufructs from the property derived under Ext. Dl can be proceeded against in execution of the decree, or should the decree-holder confine himself to the 1/3 share in the land as such, which she has got in the partition decree. THEre is no doubt that the 1st defendant's 1/3rd share in the land attached is available for being proceeded against in execution of the decree. All that I am called upon to consider is as to whether the special rights which the 1st defendant obtained under Ext. Dl can be attached and sold by the decree-holder. Even here, one can split up the rights because she has, under Ext. Dl, a right of residence and also a right to take the usufructs of the property. As regards the right of residence there cannot be any doubt that it is purely personal to her and therefore under S. 6 (d) of the T. P. Act, read with S. 60 CPC. , that interest in the property viz. , the right of residence, being restricted, in its enjoyment, to her personally, can neither be transferred nor be attached and sold. Counsel for the respondent agrees that the decree-holder will not be entitled to attach and sell the right of residence that the 1st defendant has, even as the revision-petitioner's counsel agrees that the 1/3 share in the land is attachable and saleable in execution of the decree. I mention this only to indicate that the only controversy that need be considered is the one turning on the application of s. 6 (dd), together with S. 60 CPC. in so far as they apply to the right of the 1st defendant to the profits from the property sought to be attached and sold.

(2.) ALTHOUGH I have indicated what the real controversy is about, I am not proceeding to decide it because a preliminary objection has been raised by counsel for the respondent that the Civil Revision Petition is not maintainable because an appeal will lie under S. 47 C. P. C. and that too in a different Court viz. , the District Court. I am upholding that objection and so it is not proper that I pronounce upon the attachability and sale ability, in execution of the decree, of the interest that the 1st defendant has derived under Ext. Dl. Nevertheless, I shall briefly indicate the nature of the points urged pro and con. Learned counsel for the revision petitioner relied upon S. 6 (d) and (dd) of the T. P. Act to get the right derived under Ext. Dl exonerated from attachment. What is the right that she has obtained under Ext. Dl? Is it merely an interest which is restricted in its enjoyment to the owner personally? Secondly, is it really a right to future maintenance secured by giving her the right to take the profits? If the answer is in the affirmative, the attachment and sale must fail. In support of his case, the petitioner relied upon the ruling reported in Lachhmeshwar Sahai v. Mt. Moti Rani Kunwar (AIR. 1939 P. C. 157) which has certainly features of resemblance. However, counsel for the respondent sought to distinguish this decision by drawing attention, to the fact that there the interest in property was created in fulfilment of the right to maintenance and therefore cannot be read de hors that context while, in the present case, although there is some reference to maintenance it is not as if any antecedent right to maintenance is being provided for by the creation of this interest. The ruling reported in Muttathil damodara Menon v. Ramakrishna Aiyar (AIR. 1925 Mad. 634), relied upon by the respondent, relates to a thavazhi's right to maintenance under an arrangement where the madras High Court held that such an interest in property was attachable in execution, the purchaser being entitled to take the usufructs till the extinction of the thavazhi.

(3.) IN this view I hold that an appeal against the order in question under S. 47 C. P. C. is maintainable and therefore the present C. R. P, is liable to be dismissed.