NANDARANI MAJUMDAR Vs. ARUNA BASU MALLIK

JUDGEMENT

(1.) A common question as to whether an order for permanent alimony and maintenance passed in terms of section 37 of the Special Marriage Act, 1954 (hereinafter referred to as the said Act) and incorporated in a decree of dissolution of marriage lapses on the death of the husband/judgment debtor or not having arisen for consideration in C. R. 1529 of 1979 and F. A. 11 of 1979, we have heard them together.

(2.) The above Civil Rule arises out of execution case No. 1 of 1977 now pending in the 5th Court of the learned Additional District Judge, Alipore, and is directed against an order dated January 31, 1979, dismissing an objection under section 47 of the Code of Civil Procedure which was registered as A miscellaneous Case no. 3 of 1978. That objection was preferred by Smt. Aruna Basu Mullick, executrix to the estate of late Prafulla Kumar Mitra. It is not in dispute that the opposite party before us, namely, Smt. Dorothy Mitra instituted Matrimonial Suit No. 22 of 1961 against her husband, Prafulla Kumar Mitra and therein obtained a decree of dissolution of her marriage on May 2, 1962, under the provisions of the said Act, and the decree further provided ?The petitioner do get Rs. 300/- per month as maintenance from the respondent to be paid by the 1st week of each month following for which it is due until she remarries?. It is also not in dispute that Prafulla Kumar Mitra during his life time having failed to pay the maintenance in terms of the decree, the opposite party instituted execution case No. 3 of 1962 which was disposed of on compromise, the said Prafulla Kumar Mitra agreeing to pay the current maintenance regularly and the arrears in instalments. Since then Prafulla Kumar Mitra died but in the will executed by him on March 31, 1965, he made no provision for discharge of his obligation under the above decree. Petitioner before us Smt. Aruna Basu Mullick obtained probate in respect of the said will in O. S. No. 1 of 1968. In that background when Smt. Dorothy Mitra instituted the aforesaid execution case No. 1 of 1977 for enforcement of her maintenance dues under the said decree, an objection under section 47 was lodged by Smt. Aruna Basu Mullick on two-fold grounds, namely, (1) that the execution is barred by limitation it being in respect of a decree dated May 2, 1962 and (2) that the order for payment of maintenance though incorporated in the decree ceased to be enforceable on the death of the judgment debtor. Both the grounds being overruled, the learned Judge dismissed the petitioner's objection under section 47. The learned Judge overruled the plea of limitation on the ground that the liability accrued from month to month and was acknowledged by occasional payments, last of such payments being made in December 1975. The learned Judge overruled the other pleas on the view that the decree holder is entitled to get her maintenance under the decree out of the estate left by late Prafulla Kumar Mitra. Feeling aggrieved, the said Smt. Aruna Basu Mullick has preferred the present revisional application and obtained the above Rule.

(3.) Mr. Tagore appearing in support of this Rule has not challenged the decision of the learned Additional District Judge on the point of limitation but has seriously challenged the decision on the other point contending that when the maintenance was not secured by any charge over the husband's properties by the decree it should be held that the liability for paying the maintenance being personal to Prafulla Kumar Mitra lapsed on his death; it created no debt enforceable as such against the estate of the judgment debtor. Mr. John appearing on behalf of the decree holder/opposite party has contested the point thus raised by Mr. Tagore. According to Mr. John the decree created an obligation which did not lapse on the death of the judgment debtor but continued to remain enforceable against his estate.