BHUTURI CHUTIANI Vs. MIKIRA CHUTIA

JUDGEMENT

(1.) THIS is a second appeal from the judgment and decree of the learned Subordinate Judge, U. A. D, dated 26th April 1949, by which be set aside the judgment and decree of the trial Court which had decreed the plaintiff's suit with costs awarding her 36 puras of paddy every year or its value from 1944 for the duration of her life.

(2.) THE plaintiff, a widow of one Kero Chutia, originally brought a suit, being Suit No. 410/26, against her step -son claiming maintenance out of the estate left by her deceased husband - -in the possession of the defendant. That suit was decreed in her favour, the Court ordering 86 puras of paddy to be delivered to the plaintiff every year by the defendant out of the properties left by the deceased Kero. From time to time the plaintiff obtained satisfaction of her decree in Suit NO. 410/26 through Court until 1943. From 1944 to 1947 the plaintiff failed to execute her decree and when she attempted to take out execution in March, 1947, the Court dismissed the execution application as time -barred. She then brought the present suit, being Suit No. 111/47, for the recovery of maintenance for the years 1941, 1945 and 1046. The suit was decreed by the trial Court, but dismissed by the lower appellate Court on the ground that the present suit was barred by the principles of res judicata. The trial Court had stated:

(3.) MR . Sen for the appellant contends (1) that the decree in Suit No.. 410/26 was merely a declaratory decree declaring the plaintiff's right to maintenance from the estate of her deceased husband in the possession of the defendant at the rate of 36 puras of paddy every year or its value, (a) that assuming that the decree passed in Suit No. 410/26 was a decree capable of execution, there was no bar to the plaintiff's bringing a suit for the recovery of the arrears of maintenance for the three years. In support of the second contention, he has relied upon a decision of the Madras High Court reported in Sabhanatha v. Lakshmi, 7 Mad. 80.