VENKAT RAO GANPAT RAO HARNE Vs. ZUNKARI MARWADI

JUDGEMENT

(1.) NIYOGI , A.J.C. 1. The facts of the case are that the respondent Zunkari had obtained a decree for Rs. 1,800 for arrears of maintenance and Rs. 50 per mensem for future maintenance against Budhmal and others. In execution of the decree obtained by the appellant Venkatrao against Zunkari he attached a. maintenance decree which had been passed in her favour. Under Order 21, Rule 53, the appellant applied for execution of Zunkari's decree in the manner he was entitled to execute by sale of certain property which was charged in the decree. The respondent resisted the suit on two grounds: (1) that the decree for maintenance was not liable to attachment, and (2) that the appellant could not bring the property to sale which was charged in the decree for maintenance in execution proceedings, but that his right remedy was to file a suit under Section 67, T.P. Act. The lower Court found that the maintenance decree was attachable in so far as it related to the arrears of maintenance. This finding is not disputed.

(2.) THE only contention that is pressed is that the appellant is entitled to bring to sale the property which is charged in the decree as security for the arrears of maintenance in execution. I have no doubt that the view taken by the lower Court is unsustainable. The lower Court has followed the view taken in the cases of Chundra Nath Dey v. Burroda Shoondury (1896)22 Cal 819, Aubhoyessury Dabee v. Gouri Sunkur Panday (1895) 22 Cal 859 and Hem Ban v. Bihari Gir (1906) 28 All 58. All these cases were decided before the amendment of the Civil Procedure Code in 1903. Section 99, T.P. Act, was then in force, but that section has since been replaced by Rule 14, Order 34. It has therefore to be seen whether the case is governed by Rule 14, Order 34. that rule says: 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 then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

(3.) I am unable to see the force of the contention that the decree which creates a charge on some property for payment of maintenance allowance should be treated as a purely declaratory decree. Similar objections raised in regard to purely personal decrees for maintenance were negatived in Mansa Debi v. Jiwan Lal (1887) 9 All 33, Vishnu Sharnbhog v. Manjamma (1885) 9 Bom 108 and Ashutosh Banerjee v. Lukhirnoni Debya (1892) 19 Cal 139 (FB). On a proper interpretation of the maintenance decree passed in this case it would appear that it directs the judgment-debtors to pay a certain amount as arrears of maintenance and some specific amount periodically in future. This decree is mandatory and capable of being executed by attachment and sale of the judgment-debtors' property. Had the decree not created any charge, it would nevertheless have been open to the decree-holder to attach and bring to sale the property which was charged in the decree. Can it be in accordance with the principles of justice and common sense to decline to give the decree-holder a remedy in execution which independently of the direction in the decree creating a charge he would be entitled to? The result of such a course would be to deprive the decree-holder of the rights which as a holder of a money decree he is entitled to under Order 21, Civil P.C., that could not be the intention of the decree. Nor is there any merit in driving the decree-holder to a separate suit. If the property which is charged is brought to a sale in execution it will be sold free of the incumbrance and it would also be open to the judgment-debtor to save the property from sale by a payment of the decretal amount. The policy of the law is to avoid multiplicity of suits and it would be repugnant to that policy to relegate the decree-holder to a separate suit.