BASANGOWDA BIN VIRUPAXAGOWDA Vs. IRGOWDATTI KOM KALLANGOWDA

JUDGEMENT

(1.) The question on this first appeal is whether the interest o! Irawa, a Hindu widow, under the agreement, Exhibit 28, can be attached in execution of the decree against her and others in this suit. The learned Judge following the decision of Sir Charles Sargent and Mr. Justice Nanabhai in Diwali V/s. Apaji Ganesh (1886) 10 Bom. 342 has held it cannot be attached. The appellants seek to distinguish that decision, because it was before the Transfer of Property Act came into operation in this Presidency. Alternatively they say it was wrong.

(2.) Now Section 60 of the Civil Procedure Code states what property is liable to attachment of sale in execution, viz., "lands...and, save as hereinafter mentioned, all other saleable property...belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit.... Provided that the following particulars shall not be liable to such attachment or sale, viz...(n) a right to future maintenance".

(3.) In Diwali V/s. Apaji Ganeh (1886) 10 Bom. 342, which was also the case of a Hindu widow, it was held in effect that the restriction on alienation contained in. the document of compromise then under consideration prevented her having a disposing power, and that consequently her interest could not be attached. It was, therefore, unnecessary to consider whether her interest under that document amounted to a "right to future maintenance" within the meaning of Sub-section (n).