MINOR BALAKRISHNA ANDIVELASAMI NAICKER Vs. CHINNA THAYEE AMMAL

JUDGEMENT

(1.) These two civil miscellaneous second appeals arise out of an order in execution passed by the learned Subordinate Judge of Dindigul confirming the order passed by the learned District Munsiff of Dindigul in E.P. No. 56 of 1944 in O.S. No. 245 of 1942 on the file of that Court. The appellant in C.M.S.A. No. 88 of 1946 filed O.S. No, 245 of 1942 against her step-Son who is the appellant in C.M.S.A. No. 33 of 1946 and her co-widow for several reliefs to which no detailed reference need be made. The suit was referred to the arbitration of certain arbitrators who gave an award and a decree was passed in the suit in terms of that award. The material portions of the decree for the purpose of these second appeals may be shortly referred to. After reciting that the suit was referred to certain arbitrators and that they gave their award, the decree proceeds to state, " that this Court doth in pursuance of Ex. D-1 (award) order and decree as follows....Clause (1) of the decree provides for the payment by the defendant to the plaintiff of Rs. 420 towards past maintenance till September, 1942. Clauses 2 and 3 provide for the payment of future maintenance at Rs. 15 per mensem from October, 1942. Clauses 4 and 5 deal with costs, while Clause 6 states that " time for payment of the amount decreed to the plaintiff in Clauses 1 and 2 is one month." The terms of the award are then set out. It is sufficient to refer to paragraph 5 which inter alia provides that " From out of the aforesaid arrears of maintenance, the plaintiff should get a reconveyance in her favour in respect of the garden whereof she has executed a sale deed."

(2.) In the execution petition out of which these appeals have arisen the plaintiff decree-holder sought to recover the amount of Rs. 420 which was mentioned in the decree as past maintenance till September, 1942, as also the amount of maintenance which accrued subsequently. On behalf of the first defendant judgment-debtor it was contended that she could claim payment of neither amount because she had not first obtained a reconveyance of the garden as provided for in paragraph 5 of the award. The learned District Munsiff held that so far as the payment of maintenance for the period subsequent to September, 1942, is concerned, it is an obligation which is quite independent of the obtaining of a reconveyance in accordance with paragraph 5 of the award. In respect, however, of the claim of the plaintiff-decree-holder for recovery of Rs. 420 the learned District Munsiff held that the decree-holder is under the terms of the award bound to apply the said amount so far as it is necessary for obtaining the reconveyance of the garden, and that she could not ask for the payment of that amount to her without any condition particularly when she did not even make an offer in her execution petition that she was prepared to apply the amount in the manner provided for in the award. The learned Subordinate Judge of Dindigul agreed with the learned District Munsiff on both the aspects.

(3.) C.M.S.A. No. 33 of 1946 is filed by the first defendant and his contention is that he is not bound to pay the maintenance which accrued subsequent to September, 1942, because admittedly the plaintiff did not obtain the reconveyance of the garden, I do not see how such a reconveyance can be regarded as a condition precedent to the obligation on the part of the first defendant to pay maintenance for the period subsequent to September, 1942. The Courts below were right in construing the obligation as to the payment of maintenance for that period as an independent obligation altogether unconnected with the obtaining of a reconveyance of the garden. C. M. S. A. No. 33 of 1946 is dismissed with costs.