MOHAN SINGH Vs. BINDU

JUDGEMENT

(1.) This is an appeal under Section 47, Civil P.C. by one judgment-debtor.

(2.) The facts of the case, shortly put, are that there were three brothers, Mahipal Singh, Mohan Singh and Bishun Singh. Respondent 1 is widow of Mahipal, who it appears died sometime after 1937. We do not get this date, but learned Counsel appearing on behalf of the appellant has admitted that Mahipal died after 1937. Respondent 1 brought a suit, as she was entitled to, under the Hindu Women's Right to Property Act, 1937 (18 of 1937), for partition of the joint family properties. There were two defendants to the action, namely, the appellant and Bishun Singh, respondent 2. The suit was ultimately compromised on 22-1-1943. By the compromise, respondent 1, namely, the widow of Mahipal, gave up her right of partition, and it was agreed that the defendants to the suit would give her, by way of maintenance, 16 baskets of paddy (each basket containing 11/2 kaths of paddy) every year in the month of Aghan, and, if the paddy was not paid, as agreed upon, the plaintiff, namely, respondent 1, would be entitled to realise the same from the person and property (Jat wo jaidad) of the defendants or the price thereof at the rate of Rs. 3/- per kath. It appears, later on, a suit was also brought by the appellant and respondent 2 for setting aside this compromise decree, but the suit was dismissed.

(3.) Respondent 1 has filed execution for realisation of her maintenance which had fallen into arrears because of -non-payment of the instalments as agreed upon between the parties by the compromise. Several objections were raised by the appellant, but we are, in the present appeal, concerned only with two of them, namely, (1) whether the arrears of maintenance could be realised by execution or a separate suit is necessary for the same, and (2) the question of maintenance being outside the scope of the partition suit, the compromise in regard to maintenance was beyond the scope of that suit and as such no effect could be given to the compromise. The learned Munsif, in the first instance held, as he was bound to, that the compromise decree was valid and binding upon the applicants, namely, the appellant and respondent 2. He, however, felt doubt as to whether the decree in the partition suit could be executed, and he held that a fresh suit, on the basis of the compromise decree, was necessary. On appeal, the learned Judicial Commissioner has held that no separate suit was necessary and that the decree itself could be executed.