ARUNA BASU MULLICK Vs. DOROTH MITRA

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 Jan. 31, 1979, dismissing an objection under section 47 of the Code of Civil Procedure which was registered as 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:

(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 Mttra 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.