RANGASWAMI NAICKER Vs. JANAKIAMMAL

JUDGEMENT

(1.) THE appellant is the first judgment -debtor in execution proceedings taken out by the plaintiff in execution of a maintenance decree she obtained. The decree was against the deceased husband's joint family, represented by defendant 1, his brother, defendant 2 and other family members including the legal representatives of another brother Rudrappa, who died prior to suit.

(2.) THE decree charged two lots of property, one for maintenance subsequent to suit and the second, B schedule items, for arrears of maintenance and. provision for pilgrimage etc. The plaintiff sought in execution to attach some uncharged property in the possession of the first judgment debtor. The learned Subordinate Judge rejected one of the contentions that the widow should exhaust the charged property first, before reserving to further execution. The view taken by the learned Subordinate Judge is quite correct. It is settled law that a widow cannot be confined to property charged with her maintenance and that she need not exhaust it all before she can proceed against other property belonging to her husband's joint family. This has been decided in - - 'Srinivasa Iyer v. Lakshmi Animal', : AIR 1933 Mad 33 (A), on which the learned Subordinate Judge has relied. The contention raised before me, however, is that the learned Subordinate Judge has not gone into the main allegation in the first judgments debtor's counter that the decree -holder in collusion with and under the instigation of his brother, defendant 2, was vindictively proceeding against the first judgment -debtor's property only. My attention has been drawn to the lower Court judgment in which the learned Subordinate Judge referred to a partition deed, Ex. D. 1, of the year 1945 as between the three brothers from which he selected lands allotted to each brother and charged them with maintenance of this widow subsequent to suit. He made the following observations in his judgment :

(3.) MR . Srinivasagopalachari has brought to my notice a practice which must be deprecated. He complains that execution was stayed in the lower Court although a stay petition, O. M. P. No. 4641 of 1950 was dismissed on 24 -7 -1950 because all the papers in the execution proceedings had to be sent up to this Court for disposal of this appeal. It is regrettable that this appeal has been pending in this Court for so long but in the present case I am not prepared to say that any Injustice has been occasioned by the sale being deferred until the execution petition has been disposed of in the light of these observations. As a general practice, however, when a stay petition arising out of a C. M. A. or C. R. P. is dismissed, there should be no need whatsoever for a stay in fact to operate during the pendency of the main matter. The lower Courts should retain sufficient papers in their possession to proceed further with execution or any other matter, stay as regards which has been dismissed by this Court pending the disposal of the main appeal or petition. On this appeal I make no order as to costs.