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Chamava Rachaya Vs. Iraya Sangava Hiremath - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Reported inAIR1931Bom492
AppellantChamava Rachaya
Respondentiraya Sangava Hiremath
Excerpt:
- - in the particular case there was a mortgage decree in which the amount of the mortgage debt was fixed and a direction was made that the proceeds of a sale to be held under the decree were to be paid in satisfaction of the decretal debt, but if the amount due was not satisfied by the sale the balance should be realized from other properties and the persons of the defendants. , that there was a decree for a definite sum of money which was clearly capable of execution, the privy council ruling may perhaps be distinguishable from the present case, in which it is possible to say that there was no decree which it was possible for iraya to execute until the amount of maintenance was fixed......iraya from executing the order of 4th january 1913. but before she succeeded in getting a decree iraya had already executed the decree and purchased the property. the decree obtained by rudrava was therefore in fructuous. she had therefore to bring another suit no. 178 of 1918, and eventually she succeeded on 6th july 1922 in getting possession of the property which had gone into the possession of iraya in execution of the order for maintenance passed by mr. koppikar on 4th january 1913. the present darkhast was filed on 8th july 1924. it is urged on behalf of the respondent that under these circumstances the present application may be considered to be a revival of the previous application for execution no. 232 of 1912. the contention is supported by the decision in the case of.....
Judgment:

Patkar, J.

1. This is an appeal in execution of the decree in First Appeal No. 04 of 1903 and Suit No. 214 of 1899.

2. Shankaraya and Kalasaya, who had brought a suit against the respondent Iraya, were declared owners of the immovable property in the suit except the three lands which were in the possession of Iraya. On appeal the High Court in First Appeal No. 64 of 1903 on 18th January 1904, amended the decree of the lower Court and directed that the pLalntiffs do recover possession of all the property in dispute from defendant 1, i.e., Iraya, subject to the maintenance of defendant 1, to which the Court declared he was entitled. The Court further directed the lower Court to fix in execution a liberal and suitable allowance as maintenance to defendant 1 having regard to the value and extent of the share of Baslingaya, i.e., the share to which Baslingaya would have been entitled on a partition of the joint estate. There were several applications for execution made by Iraya for determining the amount of maintenance and the decree was kept alive by applications made within three years of each other. In darkhast No. 232 of 1912, Mr. Koppikar, First Class Subordinate Judge, fixed the maintenance at Rs. 1,000 per year. Iraya then sought execution of the order for maintenance determined by Mr. Koppikar, and sought execution thereof by sale of certain property, and purchased eight lands on 14th October 1914, and took possession on 26th February 1915. It appears that certain widows of the family wore not served with notice of the application for execution and they appealed to this Court in First Appeal No. 34 of 1914. This Court set aside the order of the lower Court and dismissed the application of defendant 1 Iraya to execute the order obtained in darkhast No. 282 of 1912. The Court also set aside the order made in the darkhast for maintenance of Rs. 1,000 to be paid to Iraya. This decree was passed on 12th November 1914.

3. The present appellant Rudrava, the daughter of Shankaraya, brought a suit on 18th September 1914, No. 292 of 1914, against Iraya for a declaration to the effect that she was not bound by the Court's order dated 4th January 1913, made in darkhast No. 232 of 1912 and that the order was null and void. Rudrava's right was declared and the decree was passed in favor of Rudrava. The effect of the decree in Rudrava's suit was that the order of 4th January 1913, made in darkhast No. 232 of 1912, was null and void, and a permanent injunction was given to Iraya not to execute the above decree. That decree is dated 12th September 1918, but long before that decree the order of 4th January 1913, was already executed. Rudrava therefore brought a second Suit No. 178 of 1918, on 26th June 1918, against Iraya the respondent and others. That suit was dismissed on 9th July 1921, but it was remanded according to the decision of this Court in Chimawa v. Gangawa A.I.R. 1929 Bom. 413 and Rudrava was put in possession of the property which was purchased by Iraya in execution of the order of 4th January 1913. The present darkhast, No. 294 of 1924, was filed by Iraya on 8th July 1924.

4. The learned Subordinate Judge held that the present darkhast was in time and fixed the amount of maintenance at Rs. 1,000 per year, and awarded 20 years' arrears subject to deduction of the mesne profits received by Iraya for eight years and Rs. 1,242 recovered in execution, and declared it as a charge on the estate of Shankaraya in the hands of the opponents.

5. It is urged on behalf of the appellant in this appeal, first, that the present application for execution is barred by Section 48, Civil P.C.; secondly, that even if the application for execution was within time Under Section 48, Civil P.C., Iraya cannot get arrears for more then three years or at the most more then 12 years; and lastly, it is urged that the amount of maintenance fixed at Rs. 1,000 is excessive.

6. On the first point it is urged on behalf of the appellant that the decree of the High Court made it incumbent on Iraya to apply for execution of the decree within 12 years from the date of the High Court's decree in order to ascertain the amount of maintenance, and reliance has been placed on the decisions in the case of Dakshinamurthi Pillai v. Vedamurthy Mudaliar : AIR1927Mad842 and Khulna Loan Co. v. Jnanendra Nath Bose A.I.R. 1917 P.C. 85

7. The learned First Class Subordinate Judge relied on the decision of this Court in Narhar Raghunath v. Krishnaji Govind [1912] 36 Bom. 368 where it was held that the execution and application contemplated by Section 48, Civil P.C., 1908, relate to a decree which is executable at that date in respect of the application made and execution sought, and that the 'order for execution' contemplated by the provisions of the section refers to an order which the Court could have made and enforced in obedience to the terms of the decree. The same view was taken in Aiyasamier v. Venkatachela Mudali [1916] 40 Mad. 989 and Narsingh Das v. Debi Prasad [1918] 40 All. 211 which followed the previous Privy Council decision in Radha Prasad Singh v. Lal Sahab Rai [1890] 13 All. 53 The decision in Khulna Loan Co. v. Jnanendra Nath Bose A.I.R. 1917 P.C. 85 proceeds probably on the ground that the mortgage decree passed was an executable decree for payment of money, and though the Madras High Court in the case of Dakshinamurthi Pillai v. Vedamurthy Mudaliar : AIR1927Mad842 was of opinion that the view taken by the decisions to which I have referred supported as it was by a previous decision of the Privy Council in Maharaja of Darbhanga v. Homeshvar Singh A.I.R. 1921 P.C. 31 was correct, it was not considered necessary to refer the matter to a Full Bench having regard to the change in the new Civil Procedure Code, Order 20, Rule 11, making the ascertainment of mesne profits a proceeding in the suit instead of a proceeding in execution. It is manifest that a decree cannot be executed unless it is an executable decree. In the present case the High Court held that the property was subject to the charge of maintenance of Iraya and directed the Court to determine the amount of maintenance in execution. It would have been just and proper for the Court in execution to have determined the amount of maintenance of Iraya before it handed over the property to the pLalntiffs in that case. I think that the decree passed by the High Court was not an executable decree until the amount of maintenance was determined by the Court, and therefore Section 48, Civil P.C., would have no application till the amount was determined. After the amount was determined in execution the decree would become executable, and Section 48, Clause (b), would apply to the subsequent order made in execution proceedings according to the decision in the lcase of Apte v. Tirmal Hanmant A.I.R. 1925 Bom. 503

8. Assuming however that Section 48 applied to an application to the Court to ascertain the amount of maintenance to be awarded to Iraya, it appears that in darkhast No. 232 of 1912, Iraya made an application for ascertainment of maintenance, and Mr. Koppikar, on 4th January 1913, determined the amount at Rs. 1,000. Certain objections were taken by other widows belonging to the family and the order in the darkhast for execution was set aside at their instance on the ground that notice was not given to them of the execution proceedings. Rudrava, the daughter of Shankaraya, brought a suit to sot aside the order and for an injunction restraining Iraya from executing the order of 4th January 1913. But before she succeeded in getting a decree Iraya had already executed the decree and purchased the property. The decree obtained by Rudrava was therefore in fructuous. She had therefore to bring another suit No. 178 of 1918, and eventually she succeeded on 6th July 1922 in getting possession of the property which had gone into the possession of Iraya in execution of the order for maintenance passed by Mr. Koppikar on 4th January 1913. The present darkhast was filed on 8th July 1924. It is urged on behalf of the respondent that under these circumstances the present application may be considered to be a revival of the previous application for execution No. 232 of 1912. The contention is supported by the decision in the case of Issurree Dassee v. Abdool Khalak [1878] 4 Cal. 415 where a person obtained a decree and had the property attached and sold in execution, and the execution proceedings were struck off the file and the judgment debtor obtained an order setting aside the sale and for a refund of the sale proceeds, and thereupon the decree holder again applied to execute the decree, it was held that such an application was in substance one simply to continue the proceedings on the first application for execution, and therefore the right to execute the decree was not barred by the law of limitation. The same view was taken in Ramineedi Venkata Appa Rao v. Lakkoju China Ayyanna [1906] 30 Mad. 209 If execution is ordered but owing to some interruption not attributable to the decree-holder himself the order for execution cannot be carried out, and subsequently on the removal of the interruption the decree holder applies to carry out the previous order for execution, such an application is not a fresh application for execution but merely one to revive the previous execution proceedings: see Shaikh Kamar-ud-din Ahmad v. Jawahir Lal [1905] 27 All. 334 and Chattar Singh v. Kamal Singh : AIR1927All16 . According to the decision of this Court in Mahomed v. Bashetappa [1905] 7 Bom. L.B. 819 the subsequent application may in the interests of justice be considered to be a revival or a continuation of the previous application for execution. In the present case there are adequate grounds to hold that the present application made on 8th July 1924 is an application to revive or to continue the previous execution proceedings in darkhast No. 232 of 1912. It would therefore follow that if the present application be considered to be a continuation of the previous darkhast No. 232 of 1912, it would not be beyond time Under Section 48, Civil P.C.

9. The second point urged on behalf of the appellant is that arrears for more then three or twelve years should not be allowed in execution proceedings. No authority has been cited on behalf of the appellant in support of that contention. The articles of the Limitation Act relate to suits and not to reliefs sought to be recovered in execution. When a decree has bean passed the execution Court must execute the decree according to the terms of the original decree, and the decree-holder is entitled to recover all the arrears of maintenance from the date of the decree till the application for execution is made.

10. The last point urged on behalf of the appellant is that the amount of Rs. 1,000 fixed by the learned Judge is excessive. On the other hand it is contended on behalf of the respondent that the same amount was fixed by Mr. Koppikar on 4th January 1913, and that the appellant has led no evidence in support of his contention that the amount of Rs. 1,000 is excessive. It appears however from the evidence in the present case which has been accepted by the lower Court that the income of the lands of Baslingaya and Shankaraya did not exceed Rs. 2,000 yearly, and that even on a liberal estimate the amount could not exceed Rs. 3,000. It was found that Iraya was not an illegitimate son entitled to inherit, lie was an illegitimate son born of a woman who had adulterous connexion with Baslingaya and was entitled only to maintenance. The High Court in appeal held that he was entitled to a liberal scale of maintenance; but he cannot be given maintenance higher then the share of the income to which he would have bean entitled as an illegitimate son. As an illegitimate son entitled to succeed as heir to Baslingaya, he would have been entitled to one fourth share as Baslingaya left another son Shankaraya. Iraya therefore cannot be said to be entitled to more then one fourth of cha income of Baslingaya's property. According to the view of the learned Judge the income of the property could not exceed Rs. 2,000, but fixed the scale of maintenance on the footing that the income averaged Rs. 3,000. We find that there is no evidence on the record to justify the conclusion that the income was Rs, 3,000 par year. Taking the income as Rs. 2,000, Iraya cannot be given maintenance more then Rs. 500 per year. The learned Judge gave two reasons for giving the liberal scale of maintenance to Iraya. First he stated that Rudrava was not a woman leading a virtuous life. The point does not arise in the execution proceedings, and has no bearing on the amount of maintenance to be awarded to Iraya. Secondly, it is mentioned that Iraya has got to support a large family consisting of himself, his wife, one son and seven daughters, out of whom four are unmarried. Iraya as an illegitimate son can claim maintenance in his own right and the consideration set forth by the learned Judge that he has a large family has no relevancy on the question as to the rate of maintenance to be awarded to Iraya. We think therefore on the whole that the amount of Rs. 1,000 fixed by the learned Judge is excessive. We would reduce the amount to Rs. 500 per year. Iraya is entitled to arrears of maintenance for twenty years. He is there fore entitled to recover Rs. 10,000 for arrears of maintenance, out of which will have to be deducted Rs. 3,200, the income for eight years which he has received from the lands purchased in execution of the previous order, and Rs. 1,242 the amount which he has recovered in execution. Out of Rs. 10,000 the amount of Rs. 4,442 will have to be deducted and Iraya would be entitled to Rs. 5,558 for the arrears of maintenance due to him for the period of twenty years previous to the present darkhast and will be entitled to recover Rs. 500 per year as future maintenance. The amount of the arrears of maintenance and the amount of future maintenance will be a charge on the estate of Baslingaya. The learned Judge was wrong in stating that it was a charge on the estate of Shankaraya in the hands of the opponents.

11. We would therefore vary the order of the lower Court by directing that the applicant defendant 1 is entitled to Rs. 5,558 for arrears of maintenance due to him for a period of twenty years previous to the present darkhast and that he should recover Rs. 500 per year for maintenance from 1924 onwards from 1st January 1925. The amount of arrears of maintenance together with the amount of future maintenance is made a charge on the estate of Baslingaya in the hands of the opponent. We make it quite clear that in this appeal we do not express any opinion as to how the amount is to be recovered and from which estate. That question, will have to be determined in subsequent proceedings, which Iraya right choose to institute for the execution of this order of maintenance in his favor. Costa in proportion throughout.

12. Appeal No. 385 of 1926 is allowed to be withdrawn.

13. In Civil Application No. 26 of 1927 the rule is discharged, no order as to costs.

Broomfield, J.

14. On the point of limitation the trial Court relied on Narhar Raghunath v. Krishnaji Govind [1912] 36 Bom. 368 Unfortunately the facts in that case were altogether different. So they were in the Privy Council case, Maharaja of Darbhanga v. Homeshvar Singh A.I.R. 1921 P.C. 31 which was relied on by Mr. Manerikar for the respondent. In those cases it was obvious that the decree did riot become an operative and executable decree in respect of the particular relief in question until the occurrence of an event subsequent to the original date of the decree. It was also obvious that until the occurrence of that event no application for execution in respect of that particular relief could be made. In cases of that kind no difficulty need be felt. In the present case the High Court's decree directed an inquiry as to the amount of maintenance, which inquiry was to be made in execution. Very probably what was intended was that the lower Court should, make this inquiry before handing over possession and should do so on the application of the pLalntiffs in the suit. But having regard to the way the decree was actually drafted it is arguable that the Court was not bound to act until moved to do so by the party interested, i.e., Iraya, and the strict terms of Section 48 would require that the last of his applications in that behalf should be made not later then 12 years from the date of the High Court's decree directing the fixing of the amount of maintenance. On that view the decree in this case would be similar to a decree declaring a party's rights to mesne profits and directing that the amount thereof should be ascertained in execution.

15. In the case cited by Mr. Desai for the appellant, Dakshinamurthi Pillai v. Vedamurthy Mudaliar : AIR1927Mad842 , the Madras High Court held that in such a case limitation for the purpose of Section 48 of the Code would run from the date of the original decree. The learned Judges who decided the case obviously preferred the other view, viz., that time would only run from the date when the amount of mesne profits was fixed. But they considered that they were bound by the decision of the Privy Council in Khulna Loan Co. v. Jnanendra Nath Base A.I.R. 1917 P.C. 85 In that case their Lordships of the Privy Council did not deliver any judgment. They merely stated that they saw no reason to differ from the judgment of the Calcutta High Court. In the particular case there was a mortgage decree in which the amount of the mortgage debt was fixed and a direction was made that the proceeds of a sale to be held under the decree were to be paid in satisfaction of the decretal debt, but if the amount due was not satisfied by the sale the balance should be realized from other properties and the persons of the defendants. On this ground, viz., that there was a decree for a definite sum of money which was clearly capable of execution, the Privy Council ruling may perhaps be distinguishable from the present case, in which it is possible to say that there was no decree which it was possible for Iraya to execute until the amount of maintenance was fixed. The decision in Dakshinamurthi Pillai v. Vedamurthy Mudaliar : AIR1927Mad842 is inconsistent with the decision of a Full Bench of the Madras High Court in Aiyasamier v. Venkatachela Mudali [1916] 40 Mad. 989 and also with the decision in Narsingh Das v. Debi Prasad [1918] 40 All. 211 Owing to the difference in wording in the old Section 230 as compared with the present Section 48 it is not very useful to refer to cases under the old Code.

16. Supposing however that there is any doubt on the question whether limitation should be counted from the High Court's decree in 1904, I think that in the circumstances of this case, Iraya having made a continuous series of applications each within the period of three years fixed by Article 182, having actually got his maintenance fixed by the Court in 1913, though the High Court set it aside subsequently on a technical ground, and having been in possession of some of the lands chargeable with his maintenance by virtue of his execution application until 1922 when Rudrava dispossessed him, it will be reasonable to follow Mahomed v. Bashetappa [1905] 7 Bom. L.B. 819 and Rameshwar Singh v. Rateshwar Singh [1912] 18 I.C. 841 and treat this not as a fresh application but one in continuation or revival of the former proceedings, which became inoperative without any laches so far as the record shows on the part of Iraya. Reference may also be made to Issurree Dassee v. Abdool Khalak [1878] 4 Cal. 415 an old case but one which has been frequently folio wad by this and other High Courts. It was a case dealing with Article 167, Limitation Act 9 of 1871, corresponding to Article 182 of the present Act, but the same principle would seem to apply to cases coming Under Section 48 of the Code. On the other points in the case I have nothing to add to what my learned brother has said.


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