SOWBAGIA AMMAL Vs. MANICKA MUDALIAR

JUDGEMENT

(1.) The appellant obtained on the 30th September 1913 a maintenance decree in O.S. No. 44 of 1911 directing the defendants to pay her maintenance at Rs. 50 a month and charging the same on the properties specified in the plaint. On. appeal the High Court modified the decree by substituting for the personal decree a decree making the maintenance payable out of the joint family properties in the hands of the defendants and by confining the charge to items 4 to 25 of the plaint. She applied to execute the decree by attachment and sale of certain items chargad with the maintenance. The judgment debtors objected on the ground that the decree holder can only proceed by a separate suit and the District Judge following Aubhoyessury Dabee v. Gouri Sunkur Pandey (1895) I.L.R. 22 C 859 and Venkatasubbamma v. Venkanna (1907) 17 M.L.J. 217 upheld their contention and while granting the prayer for attachment, was of opinion that a separate suit for sale was necessary.

(2.) We do not think that the order of the District Judge can be supported. Both the decisions referred to by him proceeded on Section 99 of the Transfer of Property Act which provided that "where a mortgagee, in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67." Section 99 of the Transfer of Property Act has bean repealed and has been re-enacted as Rule 14 of Order 34 of the Civil Procedure Code. The words "whether arising under the mortgage or not " in Section 99 of the Transfer of Property Act have been omitted and the operation of the prohibition is confined to a " decree for the payment of money in satisfaction of a claim under the mortgage". The effect of the change is that the mortgagee can have the mortgaged property sold in execution of a decree on a claim unconnected with the mortgage. Tarak Nath Adhikari v. Bhubhaneswar Mitra (1914) I.L.R. 42 C. 780.

(3.) Having regard to the important change introduced by Order 34 Rule 14 we do not think that a separate suit is necessary where a Hindu widow seeks to execute a decree for maintenance which is charged on certain properties by sale of the properties charged. Though a widow has the right to seek the Court to charge any maintenance it might decree on the property of the family, there is no charge on the whole or any specified item till the decree declares it. Ram Kunwar v. Ram Dei (1900) I.L.R. 22 A. 326, The Bharatpur State v. Gopal Dei (1901) I.L.R. 24 A. 160, Manika Gramani v. Ellappa Chetti (1896) I.L.R. 19 M. 271, Lakshman Rama Chandra Joshia v. Satyabama Bai (1877) I.L.R. 2 B. 494, Raja Braja Sunder Deb v. Sarat Kumari (1916) 2. Pat. L.J. 55, Digambar Debi v. Dhan Kuwar Debl (1906) 4 C.L.J. 476. See also Mayne s Hindu Law, paragraphs 460 to 463.