PANKAJ KUMAR PAKHIRA Vs. NANIBALA PAKHIRA

JUDGEMENT

(1.) This is an application for a certificate under Article 133(1) of the Constitution and the relevant provisions of the Code of Civil Procedure, in respect of a decision of a Division Bench of this Court dated the 10th August, 1960 which affirmed the order of the Court below made in an execution proceeding. The facts giving rise to this application are shortly as follows:

(2.) On 15th June 1949 the respondent Nanibala Pakhira instituted a suit being Title Suit No. 36 of 1949 in the First Court of the Subordinate Judge at Howrah against her husband Jitendra Nith Pakhira (since deceased) for maintenance, declaration of charge and other reliefs. During the pendency of the said suit Jitendra sold some of his properties to the petitioner Pankaj Kumar Pakhira on 9tn July 1950 for a sum of Rs. 15,000/- subject to certain conditions imposing pecuniary liabilities. After this sale the petitioner was added as a party defendant No. 5 to the said suit. Subsequently the wife and the husband settled the suit and filed a petition of compromise and a decree was passed, the relevant portion whereof was as follows:

(3.) The petitioner objected to the recording of this compromise but his objection was overruled and an appeal preferred by the petitioner against the said order was dismissed. No appeal was however preferred against the decree that was passed in the said suit. The respondent thereafter made an application for execution of the said decree by attachment and sale of the properties upon which a cnarge was created for the maintenance by the said decree and this case was registered as Execution Case No. 6 of 1953 of the Third Court of the Subordinate Judge at Howrah. The attachment included the properties which had been purchased by the petitioner. The petitioner filed an objection to tne said execution proceeding inter alia to the effect that the decree for future maintenance was merely a declaratory decree and the only effective decree passed was with regard to arrears of Rs. 1440/- and with regard to costs, and it was contended that the decree-holder could realise by execution of the decree the sum of Rs. 1440/. and costs but she was required to file a suit and get a fresh decree in respect of future maintenance. The learned Subordinate Judge gave effect to this contention and upheld the objection of the petitioner. Thereupon an appeal was taken to this Court by the decree-holder Nanibala and this appeal came up for hearing before a Division Bench of this court consisting of S. R. Das Gupta and N. K. Sen JJ. and the learned Judges allowed the appeal inter alia observing as follows: