SAH RADHA KRISHNA Vs. MUSAMMAT BECHNI DEBI

JUDGEMENT

(1.) THE question in this appeal is whether the respondent was bound to bring a separate suit or was entitled to execute the decree which she had obtained declaring her right to maintenance and also declaring that the maintenance be a charge on certain properties. It is the contention of Mr. Prasad who appears on behalf of the appellant that in the circumstances of the case, contrary to the decision of the Judge in the Court below, it was necessary for the respondent to bring a separate suit in which suit all interested parties including his client should be joined and the equities that arose, if any, would be worked out as between the parties. Whether the one argument or the other is correct depends entirely upon the question whether the decree for maintenance had the effect of a decree for sale. If the answer is in the affirmative, it is obvious that no further action would be necessary but that the decree holder may proceed to execution. I say nothing nor decide anything with regard to the question whether the decree-holder was entitled to put up one property for sale out of many for the reason that there is no person before us who has any right to question the decree holder in this regard. THE appellant having purchased the property at a date subsequent to the date of the decree--to put it in other words--the purchase was subject to the charge, and the appellant therefore has got no right nor indeed any locus standi to question the decree-holder's action. THEre is, however, grave doubt whether the decree- holder was obliged in any way to make him a party to the execution proceedings. THE question depends upon the manner in which the charge which is admitted to have existed was created. If the charge was created by the decree in the action, then of course it would be necessary to bring an action to enforce the charge by way of sale of the property that was charged. But it is admitted that the charge arose not by reason of the decree made in the action for maintenance but under toe Hindu Law. THErefore bringing the action for the declaration of the right to maintenance and obtaining a decree to that effect would result in the decree having the effect of a decree for sale of the charged property; and I do not think it is at all relevant what language was used by the Court in declaring the charge to exist. Authority for this proposition is found in a decision of this Court which has been relied, Brajasunder Deb V/s. Sarat Kumari 2 PLJ 55 : 38 Ind. Cas. 791 : AIR 1916 Pat. 252 : (1917) Pat. 67 : 3 PLW 202 which was followed in Hari Sankar Rai V/s. Tapai Kuer 4 Pat. 693 : 88 Ind. Cas. 923 : AIR 1926 Pat. 31 : 6 PLT 802 and the Full Bench decision in Ashutosh Bannerjee V/s. Lukhimoni Debya 19 C 139 also supports the proposition. It is agreed no other question arises and therefore in my judgment the appeal fails and must be dismissed with costs. Varma, J.

(2.) I agree. Mr. Rai Gurusaran Prasad appearing on behalf of the appellant attacked the order of the lower Court in two ways. The first is that the decree- holder should bring a fresh suit before she can put up this property for sale; and, secondly, that his client will suffer disproportionately inasmuch as the charge which was created was created with reference to the estate in possession of the family including a large number of properties besides the subject-matter in dispute and, if the charge was distributed on all those properties, perhaps the charge with regard to village Makshudpur would be less. With regard to the first contention, it is clear from various authorities cited that it is not necessary to file a fresh suit in cases like this. Reliance was placed by Mr. Rai Gurusaran Prasad on the decision in Hem Chandra Bannerjee V/s. Annapurna Debt 36 CWN 93 : 138 Ind. Cas. 64 : AIR 1932 Cal. 423 : Ind. Rul. (1932) Cal. 386 but it was not a case of maintenance arising out of Hindu Law. The Full Bench decision in Ashutosh Bannerjee v. Lukhimoni Debya 19 C 139 which has been later on followed by more recent decisions, disposes of the first contention. With regard to the second point, nothing has been shown to us as to why the decree-holder was precluded from proceeding against one of the properties. There is nothing illegal in the matter and nothing has been shown to us in what way the order of the Court below is wrong or unjust. The appeal is, therefore, dismissed with costs.