NEELAKANTA MUTHURAJA Vs. CHINNAMMAL

JUDGEMENT

(1.) THE first respondent/plaintiff filed the suit in O.S.No.590 of 1983 on the file of the District Munsif Court, Thuraiyur against the petitioner/first defendant and second respondent/second defendant for maintenance and for possession of the first item in the suit properties. THE Court below in the judgment dated 8.2.1988 directed the petitioner to pay the sum of Rs.250/- per month from the date of filing of the suit till the life time of the first respondent towards maintenance, besides creating a charge over the half share of the second item of the suit property, towards payment of the said maintenance, and for declaration that the first respondent/plaintiff is entitled to the first item of the suit properties, and to get possession of the same from the defendants. THE first respondent/plaintiff filed the Execution Petition in E.P.No.68 of 1991 to recover the first item of the suit properties and possession was taken on 2.5.1991. Since the said maintenance was not paid as directed, to recover the same, the first respondent/plaintiff filed the present Execution Petition in E.P.No.104 of 1995. In the said Execution Petition, the petitioner filed counter stating that after the decree there was a panchayat and in the panchayat, a sum of Rs.25, 000/- was paid, and the first respondent waived the balance amount towards maintenance. Pursuant to the said panchayat, the petitioner and the first respondent resumed cohabitation only for a period of six months, prior to the filing of the Execution Petition, and she again went out of the house and is living separately. On the basis of the abovesaid pleadings, the executing court directed the petitioner /Husband to pay the maintenance till the date of the alleged resumption of cohabitation, that is, till 10.4.1990. Aggrieved, the petitioner/husband has filed the above revision.

(2.) THE learned counsel appearing for the petitioner has submitted that the decree obtained by the first respondent/wife against the petitioner/husband for maintenance in O.S.No.590 of 1983 has become ineffective and so cannot be enforced. On the basis of the said submission, the learned counsel has further submitted that the executing court is not correct in entertaining the execution petition and directing the petitioner to pay the amount towards maintenance till 1990. In support of his submission, the learned counsel has relied on the decisions in Venkayya v. Raghavamma, A.I.R. 1942, Madras 1, which is referred to in Perundevi Ammal v. Amavasikan, A.I.R. 1957 Mad. 113, and the decision in Muthukrishna Chettiar v. Meenakshi Ammal, 1958(II) M.L.J. 82.

(3.) IN Venkata Krishnayya v. Lakshmamma, A.I.R. 1944 Mad. 17, Horwill, J., has given importance to the intention of the wife to abandon the rights under the decree. From the said decision, it is clear that only if the wife abandons her rights got under the decree by adopting a fresh relationship with her husband, such a decree would vanish and cannot be executed.