MANGILAL Vs. NATHI

JUDGEMENT

(1.) THIS execution second appeal is by the judgment -debtor Mangilal and directed against the appellate order dated 19 -4 -74 of the Additional District Judge, Churu, by which he affirmed the orders of the execution court dated 17.3.73 and 27.4.73.

(2.) MST . Nathi obtained a decree for maintenance against her husband Mangi Lal from the Court of Civil Judge, Churu. On 5.5.72 she applied for the execution of the decree. She took the execution for the amount of Rs. 4107 20 p. and she prayed that the judgment -debtor is drawing Rs. 253/ - per month as his salary and, as such, one -third of his salary be attached in execution of her decree. On 6.5.72 the executing court passed an order that half of the amount beyond Rs 200/ of the judgment -debtor's salary be attached. The orders of attachment were issued accordingly. On 17.3.1973 on behalf of Smt. Nathi an application was submitted before the executing court saying that she was entitled to get one -third of the salary of the judgment -debtor attached under Section 60(1)(ia) of the Code of Civil Procedure. It was prayed that Rs. 84/ be got attached every month from his salary. A consequential modification of the order dated 6 5.72 was also sought. The learned executing court by its order dated 17.3.1973 realised the error and passed the order of attachment under Section 60(1)(ia) of the Code of Civil Procedure The Inspector of Schools was directed to send 1/3 of the salary of the judgment debtor every month till the decree of Smt. Nathi was satisfied. The judgment -debtor then by his application dated 27 4 -73 invited the attention of the executing court that the court was not empowered to revise its earlier order dated 6 -5 72 This contention did not find favour with the executing court. It dismissed the application of the judgment debtor and reiterated its order that the order attaching one -third of judgment -debtor's salary shall be complied with and the court's earlier order dated 6.5.72 shall be deemed to have been recalled The judgment (sic) or then challenged the orders dated 27.4. 23 and 17.3.73 in appeal before the Additional District Judge, Churu. The learned appellate court held that the decree under execution was clearly for maintenance and as such no order could be passed under Section 60(1)(i) and the attachment could only be ordered under Section 60(1)(ia) of the Code of Civil Procedure. According to the learned appellate court the executing court was within its power to recall the order dated 6.5.72. He attributed this power to the executing court to the inherent powers of the Court under Section 151, CPC. He dismissed the appeal. The order is the subject matter of appeal in this Court.

(3.) I will refer to Section 47 and it is extracted below: