BABURAO BALWANTRAO Vs. MT. GOPIKABAI W/O. BHAIYAJI

JUDGEMENT

(1.) THE question for decision in this appeal is whether the decree-holder can execute the decree which he holds in any other way than by enforcement of the charge which is included in the decree. The decree was one for maintenance arid the executing Court held that the decree could be executed in respect of arrears due by attachment of moveable property. The learned Counsel for the appellant admits that a decision of this Court in Shyamshankar v. Nathuram is against him, but contends that a later decision in Fatehchand v. Indian Cotton Co. Ltd. Bombay A.I.R. 1935 Nag. 129 is in his favour. It is to be noted that the latter case does not purport to overrule the former. It is urged on behalf of the judgment-debtors that a charge under Order 34, Rule 15, Civil P.C., stands on the same footing as a mortgage, and that consequently it is only the property charged which can be proceeded against and nothing else. This contention, however, is negatived in both the cases referred to, and also ill the subsequent Division. Bench decision of this Court in Mt. Sawitribai v. Seth Ghasiram Misc. Appeal No. 1 of 1936. This last case is one concerning a maintenance decree which the other two are not, and therein it was decided that although it is desirable that a decree-holder in enforcing his decree, which is both personal and which creates a charge, should either abandon the charge or proceed in the first place to realize it, it is nevertheless open to the decree-holder to pursue whichever remedy he likes. In Fatehchand v. Indian Cotton Co. Ltd. Bombay A.I.R. 1935 Nag. 129, the decree was a simple money decree for a sum of Rs. 17,500 and the Court ordered it to be charged on three specified immovable properties. The criterion adopted by the learned Additional Judicial Commissioners was whether the intention was to replace the ordinary right by a charge or to make the charge ancillary to that right. The conclusion reached was that as properties had been specially indicated, the properties evidently intended proceeding against the charge to be the primary remedy, and it was accordingly so held, and the decree-holder was required to exhaust his remedy against the charge and then, if necessary, to proceed in the ordinary way of execution as in a money decree.

(2.) I do not consider that such a criterion can be applied in the case of a maintenance decree. Here a small sum of money is due each year and is due in advance. In the case referred to, a large sum of money was immediately due. The decree-holder, a widow, dependent on the amount awarded by the maintenance decree for her subsistence, should not be forced to apply to the Collector for sale of specific items of property whenever her maintenance falls due. To insist on such a procedure which might take over a year to fructify and which affords ample opportunity for obstruction on the part of the judgment-debtors, would amount to a denial of justice. I am satisfied that it was not the intention here, as it was found to be the intention in Fatehchand v. Indian Cotton Co. Ltd. Bombay A.I.R. 1935 Nag. 129, that the proceeding against the property charged was to replace the ordinary rights of a decree-holder. It was indeed rather a security that regular and annual payments should be made. The decision reached in the executing Court that the decree-holder can execute the decree personally against the judgment-debtors without first enforcing the charge, is correct and the appeal fails and is dismissed with costs.