PALANIAMMAL Vs. ARUMUGHAM CHETTI

JUDGEMENT

(1.) The wife, who was the petitioner in the trial Court and respondent in the District Court, has preferred this appeal against the order of remand in a matter relating to the execution of a decree for maintenance that she had obtained.

(2.) When she sought to execute the decree, she was met by an objection from the husband that, as they resumed co-habitation after the decree, the decree had become ineffective and that it was unexecutable. The District Munsiff overruled the defendant's objection and allowed execution to proceed. He held that the husband was barred by res judicata from setting up any contention to the effect that the decree had ceased to be effective and he based this finding on the fact that, in a prior execution petition filed by the wife, when notice went to the husband under Order 21, Rule 22 of the Civil P. C., he did not come forward with any such objection and execution was proceeded with by attachment of certain properties in respect of which the defendant's son (illegitimate.) came forward with a claim which was dismissed and which order was confirmed by the appellate Court on the ground that no appeal lay. In the appellate order then made, the District Judge made an observation that the decree did not appear to be an executable one. When the respondent took hold of this observation and pressed it into service against the wife, stating that it was res judicata against her, the District Munsiff as well as the District Judge on appeal held that it was not because it was only an obiter dictum which was not necessary for the disposal of the case which was determined on the ground that no appeal lay.

(3.) The learned District Judge on appeal preferred by the husband against the District Munsiff's order has taken the view that, as it might be that the failure of the husband to raise the contention that he is now putting forward may have been due to one or more of several reasons, it was the duty of the District Munsiff to dispose of the matter after taking evidence with regard to the period of the cohabitation and the circumstances under which the respondent failed on the prior occasion to raise this question that the decree was not executable.