PRITHIVIRAJ PAILO Vs. KAUTUKA BABI

JUDGEMENT

(1.) THIS is an appeal preferred by the judgment-debtor from the decree of the district Judge, Jeypore, dated 17-12-65 passed in Civil Misc. Appeal No. 2/63 reversing the order of the Subordinate Judge, Jeypore, dated 19-12-64, and rejecting the objection of the judgment-debtor appellant made under Section 47 of the Code of Civil Procedure in an execution proceeding (E. P. No. 54/64), levied by the decree-holder for executing her decree for maintenance.

(2.) TO understand the implications of the points raised in this appeal, it is necessary to recount in brief the historical background of the litigation leading to the execution proceeding started by the respondent in E. P. No. 54/64.

(3.) ONE Bikram Raj had four issues. The first two issues were sons by name prithwiraj and Ramakrishna. The last two issues were daughters by name Nakhyatramala babi and Kautuka Babi. Upon the death of Bikramraj, Ramakri-shna filed a partition suit, T. S. 8/55 against Prithwiraj as defendant 1 in the court of munsif of Jeypore in which Nakhyatramala was impleaded as defendant 2 and kautuka as defendant 3. These defendants 2 and 3 claimed maintenance in the said suit, and that the same should be made a charge on the family property. A preliminary decree for partition was passed on 16-11-55 (the date of judgment was 8-11-55 ). While decreeing the suit for partition, it was directed in the said decree that defendants 2 and 3 were entitled to maintenance at the rate of eight putties of paddy and Rs. 40/- per annum and it was made a charge on immovable property in suit described in the plaint schedule. From this decree two appeals were preferred. One was by the plaintiff which was numbered as T. A. No. 76/55. The main relief claimed in this appeal was against defendant 1 and has no present relevancy. The other was preferred by the two daughters, defendants 2 and 3, which was numbered as T. A. No. 1/56. This appeal of the daughters was concerned with the quantum of maintenance only. Both the appeals were disposed of by one common judgment dated 5-5-59. In the ordering portion of this judgment it was said: ". . . . A preliminary decree is passed declaring half share of each of the plaintiff and the defendant No. 1 in the suit properties except the second-storey building on the ancestral house and another building mentioned in item No. 7 in the plaint schedule which respectively belong to the plaintiff and defendant No. 1. . . . A Civil Court Commissioner shall be appointed in proper proceedings if applied for by either of the parties in the trial court to effect partition of the properties as mentioned above by metes and bounds after which and after hearing objections if there be any to the allotments made by the Civil Court Commissioner, a final decree shall be passed accordingly. Each of the defendants 2 and 3 shall be entitled to maintenance from the date of partition at the rate of 10 putties of paddy and Rs. 48/- per annum which shall remain a charge on the joint family property. As the two brothers are to maintain the two sisters, the liability of maintaining the sisters may also be divided at the discretion of the trial court between the two brothers, so that each of them would be liable to maintain one sister. " accordingly two decrees were drawn up, one in respect of each appeal. The decree in the daughter's appeal No. 1/56 incorporated verbatim the directions contained in the last para of the ordering portion of the common judgment quoted above. Thereafter the matter remained pending in the trial court for passing of the final decree. While the litigation was at that stage both the defendants 2 and 3 filed an application before the trial court on 16-3-60 praying that the maintenance due to them be ordered to be paid to them by the plaintiff and defendant 1. This prayer was countered by the brothers. On this application, the following order was passed on 3-7-61 and it runs as follows: