BALA PRASAD MATANI Vs. AJODHYA PRASAD

JUDGEMENT

(1.) This appeal arises out of an order of the learned Subordinate Judge of Motihari, dated the 10th of April 1948, in Execution Case No. 218 of 1947. The facts are these: The appellant, who is the decree-holder, obtained a decree for Rs. 6,400/- plus costs, etc., in Money Suit No. 75 of 1934. The decree was obtained on the 8th of January 1946, against Ajodhya Prasad, son of Bhagwan Prasad, deceased, and Sat Narain Prasad, minor son of Ajodhya Prasad, under the guardianship of Mt. Dhano Kuer, his grandmother. The suit was brought against all the three persons mentioned above, but as against Mt. Dhan Kuer, the suit was dismissed. This decree was put in execution Case No. 218 of 1947. Satnarain Prasad was dead by the time, and the decree-holder made a prayer which indicates the mode in which he desired to levy execution. I am quoting below the prayer portion of his execution petition:

(2.) Apparently, a notice was issued to Mt. Dhano Kuer, who filed an objection under Section 47 and Section 60 of the Code of Civil Procedure. Her objection, in substance, was that by reason of an award dated the 5th of June 1934, made by certain arbitrators who had been appointed to settle the disputes between Mt. Dhano Kuer and her son Adhya Prasad, the maintenance allowance of Ajodhya Prasad was reduced from Rs. 125/- to Rs. 40/- and this amount was not liable to attachment under Section 60 of the Code of Civil Procedure. On behalf of the decree-holder, it was contended that the award was neither genuine nor effective in law, not having been filed in Court, and that the allowance of Ajodhya Prasad fixed at Rs. 125/- was in the nature of a salary or annuity, and was, therefore, liable to attachment. The learned Subordinate Judge heard the evidence of the parties and came to the following findings: (1) the award dated the 5th of June 1934, was genuine and valid in law; (2) by the said award the maintenance allowance of Ajodhya Prasad was cut down to Rs. 40/- per month; and (3) this allowance is not liable to attachment under Section 60 of the Code of Civil Procedure. The learned Subordinate Judge accordingly allowed the objection and dismissed the execution case. It is against this order of the learned Subordinate Judge that the present appeal is directed.

(3.) Mr. Prem Lall, appearing on behalf of the decree-holder appellant, has urged the following two points before us. Firstly, he has contended that the allowance payable to Ajodhya Prasad by his mother Mt. Dhano Kuer is in the nature of an annuity or salary, and is not, therefore, hit by Section 6 (dd) of the Transfer of Property Act, nor by Section 60 (n) of the Code of Civil Procedure. Secondly, he has contended that even if Section 60, Code of Civil Procedure, has any application, the only person who can claim the exemption under that section is the judgment-debtor, Ajodhya Prasad and Mt. Dhano Kuer, his mother, who is not a judgment-debtor, is not entitled to raise any objection under Section 60 of the Code of Civil Procedure.