DEBENDRA NATH GIRI Vs. SMTTRINAYANI DASI

JUDGEMENT

(1.) This is an appeal from the decision of the learned Subordinate Judge of - Cuttack in execution proceedings, dismissing the appellant's objection under Section 47, Civil P. C. The facts leading up to this appeal are as follows : In 1913, the decree-holder-respondent obtained a decree for maintenance against her husband at the rate of Rs. 100 per mensem. The decree for maintenance at the rate aforesaid was charged upon certain properties belonging to her husband. There were a large number of items of properties thus charged. The appellant purchased a moiety share in a certain estate in which a six annas share was purchased by a third party, and the remaining two annas was purchased by the decree-holder herself in execution of her decree for maintenance in a previous execution case. The present execution case relates to recovery of Rs. 3600 being arrears of maintenance for three years for the period August, 1938 to July 1941. The decree-holder proposed to proceed against the eight annas share purchased by the appellant.

(2.) It appears that most of the properties charged with the payment of maintenance as decreed in favour of the respondent have passed out of the hands of her husband. The appellant made an application under Section 47, Civil P. C, objecting to the realisation of the entire sum of Rs. 3600 by sale of his share in the property aforesaid. His contention in the lower Court as also in this Court was that the decree-holder, having purchased a portion of the properties charged with the payment of her maintenance, has herself become one of the judgment- debtors, with. the result that the indivisibility of the mortgage has been broken and that, therefore, the appellant was liable only for the payment of the proportionate sum out of the entire decretal amount. His contention, therefore, amounts to this that he is liable to contribute only that portion out of the amount, for which execution has been taken out, as would represent the value of his property in proportion to the value of the entire properties charged in relation to the entire decretal sum. The Court below has negatived this contention which has been repeated in this Court in appeal. In my opinion, there is a short answer to- this contention. It appears that the decree-holder purchased the two annas share in the estate, that is to say, in one of the items of the properties which were the subject-matter of the charge, free from all encumbrances. In other words, when that item of property was published for sale, it was advertised that the sale would be held without any liability for future maintenance attaching to that property. If the decree-holder had purchased that property burdened with, the liability for the payment of future maintenance, there may have been some ground for the contention raised on behalf of the appellant. If the appellant's contention were given effect to, the decree-holder's purchase of the property in the previous execution would go for nothing.

(3.) Again, the provisions of the last paragraph of Section 60, T. P. Act, cannot be applied to a decree which is not for a lump sum, as in the present case. The liability of the properties charged is a recurring one until a certain contingency happens. Until the happening of that event, the amount goes on accumulating from month to month, and the decree-holder is entitled to proceed in execution after every month that her monthly allowance falls due. Hence, it cannot be said that the principle of splitting up of the mortgage security is applicable in its full force to a decree of this nature. Every part of the property charged is liable for the payment of the decretal debt, and this liability is a recurring one. By purchasing a portion of the property charged, the decree-holder cannot be said to have split up a claim which had not accrued on the date of the purchase but which was to accrue in the future. It is a little difficult to understand how a charge which had not ripened into a present claim could be said to have been split up by an act of the decree-holder in relation to execution proceedings taken for realisation of a debt which had accrued due at the date of the proceedings.