NIRANJAN SINGH Vs. SMT. GURUA DEVI

JUDGEMENT

(1.) THIS is a judgment debtor's appeal from an order dismissing his objection under Section 47, Code of Civil Procedure against the execution of a decree obtained against him. The facts, which are not in controversy, are as under. In 1952 the Respondent filed a suit against the Appellant and his predecessor -in -interest Bhagirath Dass for a decree of declaration of a charge on the property in dispute. She stated in the plaint that Bhagirath Dass; who was her deceased husband's brother, had by an agreement agreed to pay her maintenance allowance at Rs. 540 per annum, that there was no charge created on any property for payment of this amount as there was large property possessed by him, that after the abolition of zamindari it might not be possible for her to realise the maintenance from him and consequently desired to have a charge created on some property and was entitled to have it crated, that the cause of action accrued to her on his refusal to create a charge and that she was entitled to a decree declaring that the property in dispute was charged with the payment of maintenance allowance of Rs. 540 per annum. It should be made clear that neither did she ask for a decree for fixation of maintenance allowance, not did she ask for maintenance for any month; she simply asked for a declaration of a charge for the maintenance allowance already fixed by the agreement. The suit was contested by Bhagirath Dass, who contended that the amount of maintenance allowance should be reduced. The Respondent replied that the amount of maintenance could not be reduced in the suit. While the suit was pending Bhagirath Dass sold the property in dispute to the Appellant, who also appeared in the suit and claimed that no charge could be created because he was a bonafide purchaser for consideration without notice. The trial court framed issues relating to the liability of the property to be made the subject matter of a charge and its jurisdiction to reduce the maintenance allowance. It held that the charge could be created both against Bhagirath Das and the Appellant. Coming to the question whether it had jurisdiction to reduce the maintenance allowance it held that it could not be reduced in this suit and added that there was also no justification for reducing it. It passed the decree in the following words:

(2.) THE facts that we have stated leave no room for doubt that the decree passed in favour of the Respondent is a simple declaratory decree incapable of execution. The decree has simply created a charge; neither was there any enquiry into the title of the Respondent to the maintenance nor did the decree provide either expressly or impliedly for the payment of any money by the Appellant or Bhagirath Dass to the Respondent. The Respondent herself never claimed that there should be any enquiry into her title to the maintenance or into the amount of maintenance to which she was entitled. She disputed the jurisdiction of the court to reduce the amount of maintenance fixed under the agreement and the court accepting her contention held that it could not go into the question whether she was entitled to the maintenance fixed under the agreement or not. The suit was drafted in such a way as to prevent such an enquiry; all that she sought was the creation of a charge for whatever amount of maintenance was fixed under the agreement. The cause of action arose to her simply because the agreement did not create a charge. If the agreement had created a charge she would not have filed the suit at all. Therefore, the decree that was passed simply placed her in the position in which she would have been if the charge had been created under the agreement itself. It can not be disputed for a moment that if the agreement had created a charge the Respondent could not enforce the agreement in execution and would have been under the necessity of filing a suit to enforce the agreement. Unless she obtained a decree on the basis of the agreement she could not recover anything from the Appellant or Bhagirath Dass. Merely because the agreement failed to create a charge and she got the failure remedied through the decree she cannot be in a better position. Merely because she got some kind of a decree she is not entitled to recover money from the Appellant and Bhagirath Dass by proceeding against the property charged.

(3.) IT is not for us to enquire why the Respondent sought this kind of a decree; it suffices that she cannot proceed in execution of it. If she wants to proceed against the property to recover the arrears of maintenance allowance, she must obtain a decree for payment of the arrears to her by Bhagirath Dass and the Appellant and for sale of the property in dispute in default. She cannot ask for the sale of the property in dispute straightaway in the absence of such a decree.