S SRINIVASA AYYAR Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) The lower Court has made an order allowing execution and the defendants contend that that order is wrong, on the ground that the plaintiff is bound to proceed in the Arsis instance against the properties charged under the decree. The decree sought to be executed is one for maintenance obtained by the plaintiff against her husband's co-parceners. Paragraph 2 directs the defendants to pay the plaintiff maintenance at a certain rate; out of the assets of their joint family and under para. 4 some specific items of property are charged with the maintenance awarded. The plaintiff applied in the lower Court by way of execution, for attachment of the defendant's family houseman asset of their joint family but not an item over, which the charge was created. The appellants contention is, that the plaintiff staid, not be permitted before exhausting her remedies against the security, to attach their other properties. The appeal raises, the question whether in the case of maintenance decrees providing concurrent remedies, there is a rule of law which makes it incumbent on the plaintiff to proceed against the security in the first instance. The analogy of mortgage decrees which Las been pressed onus is, in our opinion, inapplicable and no useful purpose will be served by our referring to the cases cited at the bar. Considerations that apply to decrees obtained by widows for maintenance are different from those that apply to mortgage decrees. The object of charging specific properties with the maintenance awarded to a widow is to safeguard her right and to make it prevail against per soas claiming under subsequent transfers; while the decree confers on her this special right, there is no reason to hold that her ordinary right is curtailed while that very decree in terms provides concurrent remedies, If the defendant succeeds in showing that the plaintiff's application is mala fide and oppressive and not made for a legitimate purpose, the court may, in the exercise of its discretion, refuse the plaintiff's application and compel her to pursue her remedy against the security. But, in the present cess, the facts show that far from the plaintiff's action being mala fide, the defendants who own extensive property, are withholding maintenance with the object of spiting the plaintiff.

(2.) We confirm the lower Court's order and dismiss the appeal with costs. Reilly, J.

(3.) I agree. If I may say so with respect, the decree made by the Subordinate Judge and amended by this Court on appeal does not appear to me to have been very happily worded. But I think there is no doubt that the plaintiff (Respondent before us) is within her rights as given by that decree in applying for execution in respect of the particular arrears in question in this case against the assets of the joint family other than the charged property.