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Lal Rajindra NaraIn Singh Vs. Sunder Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1925)27BOMLR849
AppellantLal Rajindra NaraIn Singh
RespondentSunder Bibi
Excerpt:
civil procedure code (act v of 1908), section 60 (a) - proceedings in execution- attachment and sale-'right to future maintenance'-liability to attachment thereof-equitable execution-receiver.;where, in pursuance of a compromise decree, certain villages were conveyed to the judgment-debtor, without power of transfer, during the life-time of his brother, in order that he should possess and enjoy the income thereof in lieu of his maintenance :-;that the debtor's interest in the villages was, under section 60(n) of the civil procedure code, 1908, neither attachable nor salable, and that the proper remedy was the appointment of a receiver thereof. - .....lordships do not agree with the high court on the subject of the actual legal position of the right of maintenance conferred upon the judgment-debtor. that right of maintenance arose under a compromise which was made between the judgment-debtor and his brother. the compromise agreement is not produced, but its terms are said by the parties to be recorded in a decree pronounced by the subordinate judge of jaunpur on may 20, 1915. the substance of this agreement is that the judgment-debtor, one of the two brothers parties to the compromise, was declared to have a right of maintenance in certain villages enumerated, the right being conferred expressly 'without power of transfer.'3. in the present case the subordinate judge in his judgment of august 10, 1920, correctly limits the issue.....
Judgment:

Shaw, J.

1. The Board is of opinion that the conclusion reached by the High Court by their judgment of May 2, 1921, was correct. It is to be regretted that the High Court did not itself, in the exercise of its powers, appoint a receiver of this property which the judgment-creditor seeks to attach and bring to sale.

2. Their lordships do not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment-debtor. That right of maintenance arose under a compromise which was made between the judgment-debtor and his brother. The compromise agreement is not produced, but its terms are said by the parties to be recorded in a decree pronounced by the Subordinate Judge of Jaunpur on May 20, 1915. The substance of this agreement is that the judgment-debtor, one of the two brothers parties to the compromise, was declared to have a right of maintenance in certain villages enumerated, the right being conferred expressly 'without power of transfer.'

3. In the present case the Subordinate Judge in his judgment of August 10, 1920, correctly limits the issue between the parties to this maintenance question. No other point was brought before the Board. Speaking of the plaintiff, the Judge says :-'He now wants to execute that decree against the property in 16 villages, which the judgment debtor has got from his younger brother, Raja Lal Bahadur Singh, for his maintenance. His prayer is that this right of maintenance be proceeded against and a receiver appointed to realise rents and profits of the above named sixteen villages and the decretal amount be paid out of the said realisation as far as possible. To this the judgment-debtor objects on the ground that the right of maintenance is not attachable under a 60 of the Civil Procedure Code.

4. Their lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that Section 60 of the Civil Procedure Code, head (n), precludes an application for that purpose.

5. The proper remedy lies, in a fitting case, in the appointment of a receiver for realising the rents and profits of the property paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family, and applying the balance, if any, to the liquidation of the judgment-creditor's debt. The High Court point out in their judgment 'the appropriate remedy is what is known as equitable execution or indirect execution, namely, by the appointment of a receiver who takes the place of the debtor and acts as an officer subject to the directions of the Execution Court in collecting and disbursing the debtor's income in accordance with the directions of the Execution Court towards the discharge of the claim of the decree-holder.' These views appear to the Board to be sound.

6. Their lordships think that the judgment of the High Court should be modified in the sense described, and that the case should be remitted to the High Court to make the appointment of the receiver on the terms just quoted.

7. In the circumstances their lordships think that there should be no costs of the appeal; and they will humbly advise His Majesty accordingly.


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