INDRA DEVI Vs. B PIRAG NATH

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order passed by the Court below by which certain objections raised by the judgment-debtor were allowed and it was held that the decree in favour of the appellant was not capable of execution.

(2.) It appears that a decree for maintenance was passed in favour of Mt. Indra Devi, the decree-holder-appellant, against Babu Pirag Nath, the judgmentdebtor. It was a decree for maintenance at the rate of RS. 70/- per mensem and a charge was created on the property of Babu Pirag Nath for future maintenance. Mt. Indra Devi has applied for execution of her decree for the total amount of maintenance that has fallen due, The judgment-debtor put forward the objection that the decree in favour of Mt. Indra Devi was only a declaratory decree and as such it was not capable of execution. This objection has found favour with the learned Civil Judge, who has, in his order, relied upon two cases decided by this Court : (1) the case of Alla Baksh v. Nisar Husian, 1 A. l. J. 541, a decision of a learned single Judge of this Court and (2) the case of Anupa Kuar v. Achhaibar Singh, 13 A. l. J. 38 : (A. I. R. (2) 1915 ALL. 61), a bench decision of this Court. The learned Civil Judge declined to consider certain rulings to the contrary of other Courts which were brought to his notice.

(3.) We have heard learned counsel for the parties. It seems to us that the appeal must be allowed. The two cases relied upon by the Court below do not seem to have any bearing on the question which the Court below was called upon to decide. In the case of Alla Bakhsh v. Nisar Husain, 1 A. l. J. 541, a decree had been passed in these terms : "That the plaintiff's claim for possession of the disputed court-yard by demolition and removal of the Chabutra and the Nali be decreed." The decree-holder applied for execution of this decree. On notice being issued to the judgment-debtor objection was raised to the effect that Section 260, Civil P. C. (Order 21, Rule 33 of the present Code) was inapplicable to the decree in question. This objection was overruled and the judgment-debtor was sent to jail for disobedience of the notice Under Section 260. The Subordinate Judge in appeal affirmed the decree of the Munsif. In Appeal to the High Court the sole point for decision was whether or not Section 260, Civil P. C., of 1882 (Order 21, Rule 32, Civil P. C.) was applicable to the facts of the case. No general principle of any kind was laid down by this Court in this case. In the case of Anupa Kuar v. Achhaibar Singh, (13 A. L. J. 88 : A. I. R. (2) 1915 ALL. 61), the facts were that a suit for ejectment was instituted in a revenue Court. It ended in a compromise according to which the plaintiffs were to give to the defendant some grain and money for her maintenance every six months, and in case of non-payment, it was provided, that the defendant might take proceedings in a Competent Court. This compromise was incorporated in a decree. On an interpretation of the terms of this decree, it was held that the decree was declaratory only, and the holder of it had no right to execute it in the revenue Court. It was, however, declared that the decree-holder could bring a regular suit in the civil Court to enforce her right to maintenance. In none of these two cases was there any question of a decree for maintenance and a charge created for enforcing that decree.