GOVINDAMMAL Vs. CHIDAMBARA MUDALIAR

JUDGEMENT

(1.) THE appellant in this appeal is the lawfully wedded wife of the respondent. She bled the suit for the recovery of maintenance, past and future, against her husband, O. S. No. 133 of 1948 on the file of the Subordinate Judge's Court, vellore, and obtained a decree in the following terms: 1. that the defendant do pay to the plaintiff at the rate of Rs. 150 per mensem for her future maintenance from 9-9-1948 the date of plaint; 2. that the defendant do pay to the plaintiff the sum of Rs. 3480 as arrears of maintenance for 3 years prior to the date of suit; 3. that the plaintiff is entitled to reside in family house at Kaniyambadi which is item no. 1 in the schedule of properties given hereunder; 4. that the properties given in the schedule hereunder be a charge for the decree amount; and 5. that the defendants do pay to the plaintiff her costs of suit Rs. 636-7-0 with interest thereon at the rate of six per cent per annum front this date till realisation.

(2.) THE appellant executed this decree for maintenance, brought to sale certain items of the charged properties and purchased the same herself in Court auction on 13-2-1958. The respondent, the husband, filed a petition in E. A. No. 371 of 1958 before the Sub Court, Vellore, purporting to be under Sections 47 and 151, C. P. C. , seeking to set aside the execution sale in favour of the appellant held on 132-1958. His main contention was that the sale was illegal as the decree in the case was not executable. The learned Subordinate Judge of Vellore dismissed the application holding that the terms of the decree were sufficiently clear and were executable. The decision cited before the learned Subordinate Judge in support of the contention that the decree was not executable, namely, the decision in ramanuja Naicker v. Seethalakshmi Ammal, 1958-2 Mad LJ 512 was distinguished by the learned Judge and was held to be inapplicable to the facts and circumstances of this case.

(3.) THE respondent preferred an appeal, A. S. No. 511 of 1958 before the District court of North Arcot, Vellore, and challenged the correct ness of the decision, of the executing Court dis missing his application. The learned District Judge held that the decision in 1958-2 Mad LJ 512 was directly applicable, and that the decree in favour of the wife was not executable, and he accordingly set aside the auction sale in favour of the wife dated 13-1-1958. This civil miscellaneous second appear has been preferred by the wife who con tends that the decision of the executing Court was right, and that there are no grounds for setting aside the execution sale in her favour.