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Nariman Edulji Contractor Vs. Pirojbai Nariman Contractor - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 44 of 1938 and Misc. Nos. 71 and 110 of 1929
Judge
Reported inAIR1939Bom367; (1939)41BOMLR625
AppellantNariman Edulji Contractor
RespondentPirojbai Nariman Contractor
DispositionAppeal allowed
Excerpt:
.....order-payment by husband of maintenance and schooling expenses-consent order not decree for money-consent order not executable as money decree-civil procedure cade (act v of 1908), order xxi, rule 11.;in proceedings under the guardians and wards act, 1890, the husband and wife arrived at an amicable arrangement for the custody and maintenance of their minor children and submitted to a consent order whereby the husband agreed to pay all expenses of maintenance and schooling of the children, and the wife or the school authorities were to receive and disburse the money accordingly. the wife thereafter took out a summons for leave to execute the consent order as if it were a decree for money under order xxi, rule 11, of the civil procedure code, 1908:-;(1) that though an order..........special jurisdiction which alone the court could have exercised in the absence of consent. as the parties consented to the court passing an order, which was within its ordinary jurisdiction, and as they were properly before the court, i think that the order was a valid order. the second question is whether this is a decree for the payment of money. order xxi, rule 11, provides that where a decree is for payment of money, the court may execute it in the manner therein provided, and then sub-rule 2 provides for the application for execution containing various particulars, and under the heading (g) the amount due upon the decree has to be stated. i am not prepared to say that every decree, to come within the description of a decree for payment of money, must state the exact sum due. you.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal against an order made by Mr. Justice Engineer giving leave to the applicant to execute a consent order dated August 6, 1929, to the extent of Rs. 9,008. The consent order of August 6, 1929, was made on two cross-petitions by a husband and a wife under the Guardians and Wards Act (VIII of 1890). By consent the two petitions were consolidated, and certain orders were made as to the custody of the minor children of the marriage of the husband and wife (of whom there were three), and as to their maintenance, and then the order contained this provision:

And I do by and with the like consent further order that the said Nariman Edulji Contractor (i.e. the husband) do pay all the expenses of the maintenance and schooling of all the said minors and that the said Pirojbai Nariman Contractor (i.e. the wife) or the school authorities, as the case may be, do receive the money sent by him from time to time for the said purpose and do forward to him proper receipts and vouchers therefor.

In the year 1937, there were divorce proceedings, and ultimately a decree for divorce was made in favour of the wife. On March 7, 1938, the wife took out a summons for leave to execute the consent order inserting in column G, in the form under Order XXI, Rule 11, a sum of Rs. 15,400 odd, which she alleged to be the amount due for schooling and maintenance under the consent order. On that application there was a reference to the Commissioner to find out what was the amount due for schooling and maintenance, and on July 25, 1938, the Commissioner reported to the Court that the parties had agreed the sum at Rs. 9,008. On that report the learned Judge made the order, which is the subject of this appeal, in which he ordered that the husband do pay to the wife a sum of Rs. 9,008 and further ordered that the wife be granted leave to execute the consent order dated August 6, 1929, to the extent of Rs. 9,008. The husband objects to the order giving leave to execute the consent order, and his objection is based on three grounds. It is said, first, that the consent order regarded as a decree of the Court is a nullity, as it was made without jurisdiction ; secondly, that if it is a valid decree, it is not a decree for payment of money; and, thirdly, that there is no method of quantifying the amount for which a decree is passed when such amount is not specified in the decree.

2. With regard to the first point, Mr. Coltman relies on Somakka v. Ramiah I.L.R. (1911) Mad. 39 and Parvathammal v. Chokkalinga Chetty I.L.R. (1917) Mad. 241 as authorities for the proposition that an order directing the father to pay a sum for the maintenance and schooling of his children is not an order which can be made under the Guardians and Wards Act, and that if such an order is made under the Act it cannot be treated as a decree made under the ordinary original jurisdiction and executed as such. I am quite prepared to accept the propositions which those cases lay down, and I think that the order made in this case did not fall within the terms of the Guardians and Wards Act, which does not confer on the Court any power to order a parent, or anybody else, to pay the school bills of the minors. But neither of the Madras cases dealt with a consent order. It is no doubt well established that parties cannot by consent confer upon a Court jurisdiction which it does not possess, but that is not quite the case with which we have to deal. In this case the parties were properly before the Court in a matter under the Guardians and Wards Act. under which no doubt the Court had only a limited jurisdiction, and it seems to me that the parties were justified in consenting to the Court making an order, which it was within the general competence of the Court to make, though it was not within the special jurisdiction which alone the Court could have exercised in the absence of consent. As the parties consented to the Court passing an order, which was within its ordinary jurisdiction, and as they were properly before the Court, I think that the order was a valid order. The second question is whether this is a decree for the payment of money. Order XXI, Rule 11, provides that where a decree is for payment of money, the Court may execute it in the manner therein provided, and then Sub-rule 2 provides for the application for execution containing various particulars, and under the heading (g) the amount due upon the decree has to be stated. I am not prepared to say that every decree, to come within the description of a decree for payment of money, must state the exact sum due. You may certainly have a decree for payment of money not presently due, and when the amount claimed by the decree-holder is not admitted by the judgment-debtor, I see no objection to the Court adopting the course, which it adopted in this case, and directing an inquiry to ascertain the amount due. I am not therefore impressed with the appellant's third objection to the order appealed from. But the difficulty I feel is in holding that this is a decree for payment of money. It is a decree for payment of all the expenses for the maintenance and schooling of the minors, and it provides that the wife or school authorities, as the case may be, are to receive the money. It is quite plain that it is not a decree for payment of money to the decree-holder, the wife, for a part, and possibly the whole, amount might be paid to third parties. It seems to me that a decree in that form cannot be regarded as a decree for payment of money, which can be executed as such. On that ground I think that the appeal must be allowed and the order of the learned Judge set aside, so far as it relates to execution of the consent order of 1929. The respondent to pay to the appellant the costs in this Court as well as in the Court below.

B.J. Wadia, J.

3. I agree.


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