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Ramabai Balkrishna Hasabnis Vs. Janardan Eknath Hasabnis - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 301 of 1941
Judge
Reported inAIR1943Bom158; (1943)45BOMLR244
AppellantRamabai Balkrishna Hasabnis
RespondentJanardan Eknath Hasabnis
Excerpt:
decree for maintenance-charge upon properties-execution-charged properties to be proceeded against first-personal liability of defendants for deficit.;a decree awarding maintenance to a hindu widow provided that on default of payment of the amount at the time fixed in any year the plaintiff was entitled to recover it by sale of properties which were charged for the payment of maintenance. the default having occurred, the plaintiff applied to execute the decree by praying that certain moneys belonging to defendants, which were outside the charged properties, should be attached and paid to her, or, in the alternative, that some of the charged properties should be sold and her decree satisfied out of the sale-proceeds. a question having arisen whether the plaintiff was entitled to the..........the effect of which is to overrule that case, and the law as now settled is that it is open to the decree-holder in such a case to first proceed personally against the defendants even though the decree directed that the amount was to be realised by sale of the charged properties. it is contended that this latest decision overrules the view taken in raychand jivaji v. basappa virappa : air1941bom71 as well as in lakshmibai's case. in raychand jivaji's) case the decree directed that in case the defendant failed to pay the amount of instalment at the time fixed, the plaintiff was to recover it out of the property over which a charge was placed. it was held in the letters patent appeal against the decision of n.j. wadia j. that since the charge was created by act of parties, the.....
Judgment:

Divatia, J.

1. This appeal arises in execution of a decree for maintenance in favour of a Hindu widow. It is to the effect that the defendants are to pay to the plaintiff maintenance at the rate of Rs. 180 per year, and if they failed to do so for any one year at the time fixed, the plaintiff was to recover the same by sale of certain properties which were charged for the payment of maintenance. On the defendants committing default in making the annual payment, the plaintiff applied to execute the decree by making alternative prayers that certain moneys belonging to the defendants, which were outside the charged properties, should be attached and' ordered to be paid to the plaintiff, or on failure of the payment, some of the properties charged under the decree should be sold and the decree satisfied out of the sale proceeds. Thereupon the executing Court passed an order for attachment of the moveables belonging to the defendants. The judgment-debtors applied to set aside that order. The trial Court dismissed the application on the ground that the plaintiff was first entitled to proceed against the moveables at her option before proceeding against any of the charged properties. The defendants appealed, and the appellate Court set aside the order on the ground that the case was covered by a recent ruling of this Court in Lakshmibai v. Shantaram (1938) 41 Bom. L.R. 420, in which it was held that where a decree directed that it was to be executed by sale of certain properties, it can only be executed in the manner mentioned in the decree. In the opinion of the learned Judge below the decree in the present case did not merely create a charge on the specific properties but it also restricted the' plaintiff's remedy to the charged properties. The appeal was, therefore, allowed and it was directed that the darkhast should be sent back to the trial Court for proceeding against the charged property.

2. The plaintiff has now appealed to this Court, and Mr. Parulekar on her behalf has contended that after the decision in Lakshmibai v. Shantaram, there has been a full bench decision in Gurappa Gurushiddappa v. Amarangji Vanichand (1940) 43 Bom. L.R. 26 the effect of which is to overrule that case, and the law as now settled is that it is open to the decree-holder in such a case to first proceed personally against the defendants even though the decree directed that the amount was to be realised by sale of the charged properties. It is contended that this latest decision overrules the view taken in Raychand Jivaji v. Basappa Virappa : AIR1941Bom71 as well as in Lakshmibai's case. In Raychand Jivaji's) case the decree directed that in case the defendant failed to pay the amount of instalment at the time fixed, the plaintiff was to recover it out of the property over which a charge was placed. It was held in the Letters Patent Appeal against the decision of N.J. Wadia J. that since the charge was created by act of parties, the specification of the particular fund or property negatived a personal liability and the remedy of the holder of the charge was against the property charged only or at any rate against the property charged in the first instance. The decision of N.J. Wadia J. that the decree-holder must first proceed against the charged property before proceeding against the judgment-debtor personally was confirmed. In the case before the full bench there was a money decree by consent and it directed the defendant to pay to the plaintiff a certain amount by yearly instalments. It further gave a charge in favour of the plaintiff for the decretal amount on certain shares belonging to the defendant, and then provided that if the defendant failed to pay the money in time, the same should be recovered by sale of the said shares. On failure of the defendant to pay the instalments in time, the charged shares were sold and an amount was realised which however did not completely satisfy the decree. Then the plaintiff applied to execute the decree for the balance by attachment and sale of a house belonging to the defendant. It was contended that the plaintiff, by taking a charge on specific shares, had abandoned his right to recover the money by any other means, and even if he had such right, he should first of all proceed to get a personal decree for payment. It was held, overruling that contention, that the plaintiff having failed to realise the whole amount of his debt by sale of the charged shares he could proceed under the decree to attach any other property of the judgment-debtor which might be available. The learned Chief Justice in his judgment commented upon the decision in Raychand Jivaji v. Basappa Virappa and observed that he was unable to agree with the conclusion that when a charge was created by act of parties, the specification of the particular fund or property negatived a personal liability and that the remedy of the holder of the charge was against the property charged only or at any rate against the property charged in the first instance. Mr. Parulekar contends that the effect of the decision in Gurappa Gurushiddappa's case is to overrule the view taken in Raychand Jivaji's case that the decree-holder should at any rate first proceed against the charged property. In my opinion, however, it cannot be said that that view is overruled. The question before the full bench was not whether the decree-holder was entitled to proceed personally against the defendant without first proceeding against the charged property. The decree-holder there had already proceeded against the charged shares, and the question was whether he had then a right to proceed personally against the defendant. When the learned Chief Justice observed that he was unable to agree with the conclusion in Raychand Jivaji's case, I think he meant the conclusion that when a charge was created by act of parties the specification of the particular fund or property negatived a personol liability and that the remedy of the holder of the charge was against the property charged only. I am not sure that he did not agree with the other view that at any rate the remedy of the holder was to proceed against the charged property in the first instance. I say so because the Court there was dealing with the argument that as the plaintiff had taken a charge on specific shares, he had abandoned the right of recovering the money by any other means, and the learned Chief Justice observes that he does not see any justification for holding that by talking a charge on a specific property the creditor abandoned his right to proceed against the other property of the debtor. He does not specifically say that the decree-holder had a right to proceed against the defendant personally without first proceeding against the charged property, nor was it necessary for him to say so for the purpose of deciding the question, viz. whether the personal remedy against the defendant had been abandoned by limiting the execution of the decree against the charged property. The decision of the full bench was that the right of the decree-holder to proceed against the personal property was not extinguished or abandoned merely because the decree directed that the amount was to be realised by sale of the charged properties. On the other hand, the decision in Raychand Jivaji's case is not, as I read it, to the effect that the remedy of the decree-holder is only limited to the charged property. It is specifically observed therein that it is at any rate against the property charged in the first instance. That means that the personal remedy can be availed of after the decree-holder had exhausted his remedy against the charged properties. Each case is an authority for what it decides on its own facts. In my opinion, therefore, although the view taken in Lakshmibai v. Shantaram may be taken as overruled, the decision in Raychand Jivaji v. Basappa Virappa in so far as it holds that the charged property should be proceeded against first before proceeding personally against the defendant has not been overruled by the full bench. The view taken by the lower appellate Court that the decree restricts the plaintiff's remedy to the charged properties alone is therefore not correct in view of the full bench decision, but the final order that the darkhast should be sent back for proceeding against the charged properties is correct. It would however be subject to this that if the decree could not be satisfied out of the charged properties, the plaintiff will have a right to proceed personally against the defendants.

3. In the result, the decision of the lower appellate Court is modified as above. Each party will bear its own costs in this Court and the lower appellate Court. Costs in the trial Court will be costs in the cause.


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