MT GAURI MISRANI Vs. MT NILABATI MISRANI

JUDGEMENT

(1.) THIS is a reference by the Munsiff of Sambalpur under Order 46, Rule 1, C.P.C., and arises in connection with certain execution proceedings before him. The decree -holder who is a widow, obtained a decree for maintenance in T. S. No. 201 of 1946, against her husband's brother and has started the present execution proceedings for recovery of the arrears of maintenance due under the decree. The opposite party in the execution is the widow of the original judgment -debtor. In execution of the decree, land of the extent of 11.49 acres was attached, but the execution became infructuous, because, according to the provisions of the Central Provinces Tenancy Act the said land was not saleable. There being no other mode of execution available, the decree -holder applied to the executing Court for the appointment of a receiver in respect of the said land to realise the arrears. Various objections were taken on behalf of the judgment -debtor, but the executing Court overruled the same and appointed the present judgment -debtor herself as the receiver. As against that order she took up an appeal to the Subordinate Judge which was dismissed. The judgment -debtor was thereafter called upon to furnish personal security for a sum of Rs. 2000 in order that she may function as a receiver under the Court. But she took no steps to furnish security, nor even to appear in Court. In these circumstances, the learned Munsiff thought that the only course available would be to appoint some person other than the judgment -debtor as the receiver, taut appears to have felt some doubt as to the legality of such a course. He has accordingly referred the case to the High Court for its opinion under Order 46, Rule 1.

(2.) I must state at the outset that this reference to the High Court on a matter of this kind is not a proper use of the provisions of Order 46, Rule 1. A reference to the High Court under that provision must only be in cases of exceptional nature where the question involved is beyond the normal capacity and resources of the subordinate Courts; for instance, where it raises a difficult constitutional point or a point of great public importance on which there is considerable conflict of opinion andso forth. This provision is not meant to relieve the subordinate Courts of their responsibility to apply their minds to and to come to their own conclusions on the questions of law that may ordinarily arise in any case. Any Court must decide a question of law that is presented before it to the best of its knowledge and ability and must leave the aggrieved party to their remedies by way of an appeal or revision. As will be seen presently, the question involved is one that is fairly covered by authority. If only the Munsiff took care to read the judgment of his predecessor in this very case, at an earlier stage, he would have been referred to the case in - - 'Banwari Lal v. Bal -deo Sah', AIR 1942 Pat 240, which directly covers the point that he has raised and which he was bound to follow in the absence of any other case of this Court or that Court overruling the same. This Court cannot be called upon to answer every doubt about a question of law which the subordinate judicial officers may feel. In the present case, the reference is all the more regrettable, because, obviously the execution has been held up for over a year and a half by the pendency of these proceedings in this Court.

(3.) ORDER 40, Rule 1, Sub -rule (2), is as follows :