BUSSA ANSUYA Vs. BUSSA RAJAIAHA

JUDGEMENT

(1.) Although the question raised in this appeal could have been raised after final decision by the Court of first instance, the appellant has chosen to prefer this appeal and raised the question whether the execution application is maintainable. The facts are that a decree for maintenance was obtained by a Hindu wife against her husband. The enforcement of the decree is sought by the execution petition presented by the wife. The husbands plea in answer to the petition was that after the decree, the wife came to live with him and consequently the entire proceedings including the decree must be deemed to be no longer effective.

(2.) The District Munsif held that the plea of the husband being in the nature of a post-decretal arrangement which was not certified to the court, the levy of execution could not be denied. On appeal, the learned District Judge held that if, in fact there was a resumption of cohabitation, the decree ceases to be exeuctable. The opinion of the learned District Judge is based upon the legal position enunciated in Vasantam Venkayya v. Vasatam Raghavamma. LIR (1942) Mad 24 = (AIR 1942 Mad 1). Inasmuch as there was no enquiry into the question whether infact cohabitation was resumed, the learned District Judge remanded the proceedings to the Court of the first instance for enquiry into the question formulated by him.

(3.) The two questions formulate by the District Judge relate to the position whether subsequent to the decree the appellant and the respondent lived together resulting in the resumption of cohabitation. The two questions framed by him are inter-related and both of them cover in substance the same ground. The plea of the wife was that her visit to the husbands house was only for the collection of the decretal dues and she stayed on for sometime as she was being put off from time to time by the promise of the husband that the liability would be met. This plea amounts to. saying that though she was physically present in the conjugal home, her stay there is no sense constituted a cohabitation. The learned District Judge, in my opinion, very proceedings for enquiry into the questions formulated by him.