ANUPA KUNWAR Vs. ACHHAIBAR SINGH

JUDGEMENT

(1.) A suit for ejectment brought by Achhaibar Singh and others against Anupa Kunwar in a Eevenue Court came up to this Court in second appeal and was settled in accordance with an arbitration award. The award provided that a decree for possession of the land should be passed in favour of Achhaibar Singh and others, and that Anupa Kunwar should receive from Achhaibar Singh and others eleven maunds odd of grain and Rs. 14 in cash by way of maintenance to be paid in half-yearly instalments. Anupa Kunwar has now applied to the Revenue Court to execute so much of the decree mentioned above as relates to the maintenance payable to her. The Revenue Court being doubtful whether it has jurisdiction to entertain the application has referred this case to this Court under Section 195 of the Tenancy Act. The award, which is incorporated in the decree of this Court, provides that if the maintenance due to Anupa Kunwar is not paid she may enforce payment by taking proceedings in a competent court (ba-ckarajoi adalat majaz hasb zabta). It seems to us that the persons who drew up the award knew that there would be difficulty in executing a decree for maintenance in a Revenue Court and therefore, instead of providing that enforcement of the decree should be by proceedings in the execution department, they provided that Anupa Kunwar should take proceedings in a competent court). We regard this portion of the decree as merely declaratory of Anupa Kunwar s rights to receive maintenance. In our opinion she should bring a regular suit in the Civil Court to enforce her right to maintenance. Section 195, Sub-section (3) of the Tenancy Act provides "on any such reference being made the High Court may order the court either to proceed with the case, or to return the plaint, application or appeal for presentation to such other court as it may declare to be competent to try the same." It seems to us that we should not take either of these courses. In our opinion the application for execution should be dismissed. With this expression of opinion we direct that the papers be returned to the court which has made this reference.