SRIMATI INDRAMANI DASI Vs. SURENDRA NATH MONDAL

JUDGEMENT

(1.) This is an appeal by the decree holder against an order of dismissal made on an application for execution of a decree for maintenance, The decree was made by consent of parties on the 27 May 1914. The petition of compromise, which was incorporated in the decree, stated that the plaintiff would be entitled to maintenance at the rate of Rs. 4 par month and that if the amount was not paid from month to month, the plaintiff would be entitled to realise the same from the defendant by execution of the decree, The petition further stated that a sum of Rs. 287 was payable on account of arrears of maintenance, and that this sum would be leviable in execution in two instalments of Rs. 200 and Rs. 87 respectively. The petition finally recital that all the properties mentioned in the schedule to the plaint would remain charged for the payment of the allowance settled as maintenance. The decree directs that the suit be decreed in accordance With the compromise, that the sum of Rs. 287 be paid by the defendants to the plaintiff and that on default of payment of the first instalment, the plaintiff do realise the whole amount by sale of the properties mentioned in the schedule. In answer to the present application for recovery of maintenance, at the prescribed rate, in execution, the judgment-debtors urged that the amount could not be recovered in execution and that it was obligatory on the plaintiff-decree holder to institute a suit for enforcement of the charge created by the decree. This contention was overruled by the Court of first instance, but on appeal the District Judge has given effect to the objection and dismissed the application for execution, on the ground that the decree holder was not competent to sell the properties in execution without recourse to a suit for enforcement of the charge. On behalf of the appellant decree holder, it has been argued before us that the view taken by the District Judge is erroneous and that she is competent to execute the decree notwithstanding the provisions of Order XXXIV, Rules 14. and 15, Civil P. C.. This view has been controverted on behalf of the respondents judgment debtors, who have further urged that the decree is for arrears of maintenance alone and does not, if correctly interpreted, entitle the plaintiff to realise future maintenance by execution.

(2.) In our opinion, the construction placed upon the decree by the respondents does not give effect to the intention of the parties. The decree incorporates the petition of compromise, which stated expressly that the amount of maintenance payable in future was fixed at Rs. 4 per month and that on default of payment such sum would be recoverable by the plaintiff in execution. The statement in the decree that the suit be decreed in accordance with the petition of compromise plainly gives effect to this clause. Stress is laid, on the fact that this clause was not explicitly recited in the decree, while the other clause was expressly incorporated, but that was done obviously for the reason that the sum specified had already fallen due. We cannot further overlook the circumstance that the construction now put forward had not been suggested by either of the parties in the Courts below. We hold accordingly that this is a decree for payment of future maintenance. The question thus Arises, whether the decree can be executed not withstanding the provisions of Order XXXIV, Rules 14 and 15 of the Civil P. C., or whether the decree-holder is under an obligation to enforce the charge by a suit. We are of opinion that this question should be answered in favour of the decree holder.

(3.) Rule 14 of Order XXXIV provides as follows:--"Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, Rule 2."