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Ramchandrarao Gangadharrao Vs. Vithal Keshav - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberCross First Appeal Nos. 377 of 1940 and 52 of 1941
Judge
Reported in(1947)49BOMLR754
AppellantRamchandrarao Gangadharrao
RespondentVithal Keshav
DispositionAppeal allowed
Excerpt:
decree for maintenance-charge upon property-whether charged property to be proceeded against first-cash allowance on service lands for which service commuted into fixed annual payment-attachability of-civil procedure code (act v of 1908), section 60.;a decree for maintenance provided that the debt be paid by the defendants out of the family property in their possession and it laid a charge on certain property for that amount. it also provided that the plaintiff was entitled to put up for sale these properties in execution proceedings. in execution of the decree the executing court permitted execution to take place against certain moveable property of the defendants other than the property charged under the decree. on the question whether the decree-holder was bound to proceed in the first..........out of that property, and only out of the movable property of the family in the event of the charged property being insufficient to satisfy the decretal debt; and for this contention reliance has been placed on two decisions of this high court (one of a bench and one of a single judge)raychand jivaji v. basappa virappa : air1941bom71 and ramabai balkrishna v. janardan eknath (1942) 45 bom. l.r. 244. in the first of these cases it was decided that the specification of certain property as charged negatived the creating of a personal liability when the decree was a consent decree, so that the remedy of the charge-holder would be against the property charged only, or at any rate against the property charged in the first instance; and in the second case this decision that the.....
Judgment:

Macklin, J.

1. These cross-appeals arise out of orders passed by an executing Court. The decree under execution provided that the debt should be paid by defendants Nos. 1 to 3 out of the family property which was in the possession of defendants Nos. 1 to 8, and it laid a charge on certain property for that amount; and it went on to say that the plaintiff was entitled to put up for sale, if necessary, those properties in execution proceedings. The decree is a decree for maintenance; and what the executing Court has done is to permit execution to take place against certain movable property and has at the same time refused to allow a certain cash allowance to be attached. The judgment-debtors have appealed against the order allowing any movable property to be attached, and the plaintiff's heir has appealed against the refusal of the executing Court to attach the cash allowance.

2. Dealing first with the appeal by the defendants, their learned advocate's contention is that from the fact of a charge having been laid on certain specified property the intention of the decree was that it should be executable in the first instance out of that property, and only out of the movable property of the family in the event of the charged property being insufficient to satisfy the decretal debt; and for this contention reliance has been placed on two decisions of this High Court (one of a bench and one of a single Judge)Raychand Jivaji v. Basappa Virappa : AIR1941Bom71 and Ramabai Balkrishna v. Janardan Eknath (1942) 45 Bom. L.R. 244. In the first of these cases it was decided that the specification of certain property as charged negatived the creating of a personal liability when the decree was a consent decree, so that the remedy of the charge-holder would be against the property charged only, or at any rate against the property charged in the first instance; and in the second case this decision that the decree-holder's remedy in such a case was to proceed in the first instance against the charged property and against the rest of the property only if the charged property was insufficient to satisfy the decretal debt, was reaffirmed. The difficulty in accepting these decisions is that a full bench of this Court definitely disapproved the first of them: see Gurappa Gurushiddappa v. Amarangji Vanichand (1940) 43 Bom. L.R. 26.. That was not a case of a consent decree, though in our opinion that makes no difference. It was a case where the defendant was directed to pay a certain sum and a charge was provided upon certain property; and the decree went on to say that if the defendant failed to pay the money in time, it should be recovered by the sale of shares. The full bench held that it was right to treat the primary object of a charge upon specific property as being to secure the creditor against other creditors, and in the case of consent decrees their Lordships thought that it would be quite impossible to infer from the existence of a charge any intention on the part of the creditor to abandon any other remedy that might otherwise be open to them. They also held that to limit the creditor to the property charged would be to ignore the fact that in the decree then in contemplation there was an order against the judgment-debtors for the payment of the amount; in other words it was a personal decree as against them. Their Lordships do not say in terms that the decree-holder was bound to proceed in the first instance against the charged property, or was not bound to proceed in the first instance against the charged property. The particular question did not arise in the case with which they were dealing, where the only question at issue was whether the personal decree was enforceable at all in view of the fact that some of the property had been charged; and it is because the full bench was silent upon this particular point that Mr. Justice Divatia in Ramabai Balkrishna v. Janardan Eknath held that the full bench did not overrule the earlier decision of this Court in so far as it was a decision that the decree-holder was bound to proceed in the first instance against the charged property and could only then proceed against the debtors personally. But with respect it seems to us that the learned Judge overlooked the principle underlying the decision of the full bench, as well as some of the words which were used. The principle underlying it is that the object of a charge is primarily for the benefit of the creditor, and the actual words used in part of the judgment are these:

That seems to me to be the object of a charge; not to regulate the order in which the defendant's property is liable to be attached. Taking Clause (1) of this decree, it is perfectly plain that it amounts to an order for payment, and if such clause stood alone, it would be enforced by any of the methods authorized by the Civil Procedure Code, including attachment and sale of any of the defendant's property. There is nothing in the rest of the decree which expressly takes away or limits that right, and I can see no reason why it should be held that the plaintiff by implication has deprived himself of that right or delayed its enforcement.

It seems to me that due emphasis must be given to the words 'or delayed its enforcement' and 'or limits', and if that is done, it cannot be said that the plaintiff's right to execute this decree in any order he pleases has been in any way affected. The appeal by the defendants must therefore fail.

3. The learned Judge has raised the attachment on the cash allowance on the ground that it is a 'political pension' and as such protected by Section 60 of the Civil Procedure Code. For this he relies upon an unreported decision of the High Court of Lahore which attempts to define the word 'pension'. According to strict etymology 'pension' ought to mean nothing more than payment; in theory it would cover every possible payment, but in practice it does not. It is not altogether easy to say whether a cash allowance on service lands for which the service has been commuted into an annual fixed payment amounts to a pension or not. But even if it does amount to a pension, we are satisfied that it is not in any sense a 'political pension.' For illustrations of what is meant by 'political pension' I may refer to Sir Dinshah Mulla's Civil Procedure Code and the notes under Section 60(1) (g). The only instances given are allowances granted (1) to the 'Candyan pensioners' of Ceylon (2) to the members of the family of the King of Oudh (3) to the members of the Mysore family (4) and to the descendants of the Nawab of the Carnatic (5) or paid to a deposed Maharaja by a foreign State by an arrangement with the Government of India. A cash allowance of the kind we have here has nothing whatever in common with any of the instances given in that list. But no other type of political pension is mentioned. We are unable to think of any other political pension for ourselves; and although the list cited need not be regarded as exhaustive, it is difficult to see why any other type of pension should be included in it. The plaintiff's appeal must therefore succeed.

4. In the result, the defendants will pay the costs of both the appeals, The attachment on the cash allowance is restored.


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