SECRETARY OF STATE FOR INDIA Vs. BAI SOMI

JUDGEMENT

(1.) This is an appeal by the Secretary of State for India in Council against an order of the First Class Subordinate Judge at Ahmedabad dismissing the appellant's darkhast proceedings. It appears that the plaintiff in the suit obtained leave to sue as a pauper. In the suit she was claiming possession of a certain house. The suit was compromised on the terms that the plaintiff should receive a sum of Rs. 96 a year for maintenance, such maintenance to be recoverable out of the house in suit.

(2.) The present appellant has now applied in darkhast proceedings to attach the house out of which the maintenance is recoverable, and he seeks to do so under Order XXXIII, Rule 10. That rule provides:- Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper ; such amount shall be recoverable by the Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit. That rule, in terms, applies where the plaintiff succeeds in the suit. But I will assume that it also applies to a case which the plaintiff, by way of compromise, succeeds in getting something out of the suit. But, in that case, I think, the charge can only be on the, interest which the plaintiff recovers in the suit, and here what the plaintiff has recovered in the suit is a right to maintenance and not the house.

(3.) Mr. Rao, for the appellant, has contended that, if that is so, we ought to make an order appointing a receiver of the plaintiff's maintenance and direct the receiver to pay, out of the sums received by him, the amount due to Government, and in support of his contention he relies on a decision of the Madras High Court in Secretary of State for India in Council v. Venkata Lakshmamma (1926) I.L.R. 49 Mad. 567. That decision purported to follow a decision of the Privy Council in Rajindra Narain Singh V/s. Sundara Bibi (1925) I.L.R. 47 All. 385 in which the plaintiff was seeking to enforce a money decree. The head-note reads:- Held, the appellant's interest in the villages was a right to future maintenance within Section 60, sub-section (1) (n) of the Civil P. C., 1908, and therefore could not be attached and sold ; but that a receiver should be appointed to realize the rents and profits, with direction to pay thereout a sufficient and adequate sum for the maintenance of the appellant and his family, and to apply the balance (if any) to the liquidation of the decree. Now, under Section 60 (n) of the Civil Procedure Code a right to future maintenance is not liable to attachment or sale, and it would certainly seem that an order appointing a receiver to collect future maintenance and pay the amount, or part of the amount, over to the judgment creditor is an order for attachment. Many payments, in addition to future maintenance, are exempted from attachment under Section 60, and such exemptions would appear to be based on considerations of public policy. If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost.