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Md. Murthuza HussaIn Vs. S.V.L. Narayana Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 18 of 1970
Judge
Reported inAIR1974AP271
ActsCode of Civil Procedure (CPC), 1908 - Sections 60(1)
AppellantMd. Murthuza Hussain
RespondentS.V.L. Narayana Rao
Appellant AdvocateV. Venkataramanaiah, Adv.
Respondent AdvocateK.B. Krishna Murty and ;K.B. Ratna Sastry, Advs.
Excerpt:
.....1908 - whether amount of maintenance received under maintenance decree by person can attached by decree-holder who had obtained decree against said person - as per section 60 (1) right of future maintenance cannot be attached - arrears of maintenance after they have due can be attached by said decree-holder. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of..........question arising from the facts is whether an amount of maintenance decree can be attached by a decree-holder who has obtained a decree against the decree-holder in the maintenance decree. the answer to this question naturally depends upon how we understand clause (n) of the proviso to s. 60(1) of the civil procedure code. while section 60(1) enjoins that the property enumerated in sub-section (1) is liable to attachment and sale is execution of a decree, the proviso says that the particulars mentioned in the proviso shall not be liable to any attachment or sale. clause (n) of the proviso reads : '(n) a right to future maintenance.'3. the contention based upon these words by the appellant was that a right to future maintenance continues even after the amount of maintenance has become.....
Judgment:

Gopal Rao Ekbote , C.J.

1. This appeal has come to us on a reference made by our learned brother , A. V. Krishna Rao, J. by an order of reference dated 29-8-1973. The learned Judge has given the facts of the case and we don not desire to repeat them here. The learned Judge thought that the decision of Sanjeeva Rao Naidu , J. in Official Receiver Nellore v. China Venkayya , : AIR1960AP353 is opposed to several decisions referred by him. He therefore referred the matter to a Division Bench and that is how it has come before us.

2. The question arising from the facts is whether an amount of maintenance decree can be attached by a decree-holder who has obtained a decree against the decree-holder in the maintenance decree. The answer to this question naturally depends upon how we understand clause (n) of the proviso to S. 60(1) of the Civil Procedure Code. While Section 60(1) enjoins that the property enumerated in sub-section (1) is liable to attachment and sale is execution of a decree, the proviso says that the particulars mentioned in the proviso shall not be liable to any attachment or sale. Clause (n) of the proviso reads : '(n) a right to future maintenance.'

3. The contention based upon these words by the appellant was that a right to future maintenance continues even after the amount of maintenance has become due or is deposited in execution of the maintenance decree. In support of that contention he sought to rely upon the decision of : AIR1960AP353 (supra).

4. Before we examine the cases cited to us, we would like to say that under clause , (n) of the proviso to Section 60(1) , C. P. C. the judgment-debtor's right to future maintenance alone cannot be attached in execution of a decree. The reason for that is obvious. As the right to future maintenance is a personal right , it is always considered to be in accordance with public policy that such a right, which is generally created for the maintenance or the personal enjoyment of the grantee, ought to be made not only in alienable but unattachable.

5. Section 6(dd) of the Transfer of Property Act accordingly states that 'A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.' That provision is also based on the same principle as stated above. Even for purposes of that provision a right to arrears of maintenance has been considered not to fall within the purview of the said clause .

6. Under Section 60, C. P. C. also a distinction must be made between a right to future maintenance and arrears of maintenance which have become due. While a right to future maintenance is a prospective right to a personal character , arrears of maintenance after they became due , are a debt which has become due and the relationship of the parties changes in regard to such amount and the relationship becomes that of creditor and debtor. Section 60(1) , clause (n) to the proviso therefore does not prevent the attachment of arrears of maintenance which have fallen due. What follows is that prospective right of maintenance in future is not only inalienable but unattachable. But when some amount in pursuance of such a right becomes due, it becomes attachable because to such a case clause (n) of the proviso would not apply. If this distinction is borne in mind then the case of the decree-holder in the instant case should be considered far better than a case where the amount of maintenance had become due. Because , in the instant case after the amount had become due it was deposited to the credit of the decree-holder in the maintenance of the decree. The moment such amount is deposited in court to the credit of the decree-holder it became the property of the decree-holder and it can, without any objection , be attached by another decree-holder who obtained a decree against such a person. We are fortified in our view by the following decisions .

7. As early as in Kasheeshuree Debia v. Greesh Chunder Lahoree, (1866) 6 Suth WR 64 (Misc.) , a Bench held, 'Arrears of maintenance are liable to attachment in execution of a decree, although the right to future maintenance is not so liable.'

8. In Hoymobutty Debia v. Koroona Moyee Debia, (1866) 8 Suth WR 41 (Civil) the Bench reiterated the view and said : 'Arrears of maintenance are capable of being attached as a debt due to a widow in execution of a decree against her .'

9. Asad Ali Molla v. Haider Ali, (1911) ILR 38 Cal 13 takes the same view.

10. In Province of Orissa v. Venkata Rangama, : AIR1950Ori220 the Bench observed : 'The prohibition against attachment in respect of maintenance applies only to future maintenance and not to arrears of maintenance .'

11. Let us examine whether : AIR1960AP353 (supra), on which reliance was placed, decides anything contrary to what we have said above, Sanjeeva Row Nayudu, J. in that case said :--

'The mere fact that future maintenance accrues by lapse of time and becomes, as it were, maintenance due, would not become liable for attachment , as what is exempted under the Civil Procedure Code is property or right. Merely because that right develops into a claim, to say that that claim is subject to attachment, would undoubtedly have the result of defeating the very purpose of granting exemption under the section. The principle on which exemption is granted in regard to the rights of future maintenance is that a person who is depending on that right for her maintenance should not be deprived would result in starvation. The general policy underlying exemption in Section 60 clearly indicates the anxiety on the part of the legislature to ensure a certain minimum income or property to the person concerned, so as not to interfere with what is needed for his existence in this world .'

12. With great respect to the learned Judge we find it very difficult to agree with this conclusion. While we agree that the principle underlying clause (n) of the proviso to Section 60(1), C. P. C. is based upon public policy , as stated by us supra, it does not necessarily follow that the right to future maintenance would continue to apply to a case where it has materialised and has been quantified and deposited towards satisfaction of a decree of maintenance. We are unable to agree with the view that what is exempted under the Civil Procedure Code is some property or right . What is exempt from attachment is right to maintenance in future but not the arrears of maintenance which had become due in pursuance of such a right. The distinction is clear and has to be always borne in mind.

13. C. Venkataraju v. T. Sathiraju 1954-2 Mad LJ 324 is another decision to which our attention was invited. Sanjeeva Row Nayudu, J. dissented from the said decision. In that decision , Mack , J. held that 'Everything would depend upon the meaning of word 'maintenance' that is, what in the opinion of the executing court is , in the circumstances of the case , a reasonable maintenance.' 'I can myself no impediment in restricting the exemption in Section 60(1) (n) to maintenance pure and simple and anything which, in the opinion of the executing court , is in excess of maintenance not being exempt from attachment.'

14. Reliance for that view was placed on Rajindra Singh v. Mt. Sundar Bibi, AIR 1925 PC 176. The learned Judge conceded the position that 'there is a difference between selling a right to future maintenance and attaching such maintenance when it becomes payable, which is out of the category of future maintenance.' The learned Judge categorically said : 'The type of cases where a maintenance allowance is sought to be attached or a position of it as it falls due, as it appears to me, is not attachment of a right a future maintenance covered by Section 60(1)(n).'

15. We would seem to part company with the learned Judges when he said : 'It is analogous to the attachment of salary or allowance payable to Government servants under Section 60(1)(n) whose salaries upto the first Rs. 100 and one-half of the remainder are exempt from attachment. In this category of cases, a portion of the salary which is not exempt , becomes attachable, when it is payable under procedure specifically provided by Order 21, Rule 48. I am myself unable to see how a maintenance amount , when it becomes payable , can fall into the category of a right to future maintenance and total exemption claimed on this footing : 'The learned Judge then observed : 'It is for the executing court on the facts of each case to determine how much of an allowance should be made attachable having regard to the circumstances of each case.'

16. What follows , therefore , is while we agree with the learned Judge that arrears of maintenance are attachable , we find it difficult to agree with him that only that portion of the arrears is attachable which is considered reasonable by the executing court. The words of Section 60(1) proviso do not warrant any such exclusion. It may be that in the case of salary and allowance a portion of it has been expressly declared to be unattachable. The legislature if wanted to give similar treatment would have specifically provided so in regard to arrears of maintenance. The very fact that the Legislature had not thought fit to so provide would clearly indicate that such arrears of maintenance after they become due are considered to be a debt due to the maintenance-holder and like any other debt it can be attached in execution of a decree against the maintenance holder .

17. AIR 1925 PC 176 (supra) was a case which held that although the right of maintenance and not salable under Section 60, the proper remedy lies, in 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.

18. The view of the Privy Council has not been approved of by the Supreme Court in Union of India v. Smt. Hira Bebi, : [1952]1SCR765 . This decision in effect had decided that what cannot be done had decided that what cannot be done directly under Section 60(1) proviso should not be allowed to be done indirectly. The said Supreme Court decision supports the view which we have taken when it says : 'This conclusion does not, however , apply to the arrears of salary and allowance due to the judgment-debtor as they stand upon a different legal footing. Salary is not attachable to the extent provided in Section 60 , Civil P. C. clause (1), but there is no such exemption as regards arrears of salary.' The same principle would apply to the case of arrears of maintenance .

19. Following the abovesaid Supreme Court decision a Bench of this Court in C. Narayana Reddi v. State of Andhra Pradesh , (1964) 2 Andh WR 388 held ,

'The prohibition against attachment of a right to future maintenance is based on grounds of public policy. The interdiction under Section 60(n), Civil Procedure Code, being absolute to allow the Government to reach the fund by means of the appointment of a receiver would be to circumvent the statute. Therefore execution should not be levied against the said right even by the appointment of a receiver which would be to allow the judgment-creditor to do indirectly what he cannot do directly.'

20. The result of the foregoing to that while the right to future maintenance cannot directly be attached, nor can that provision be circumvented by appointment of a receiver , arrears of maintenance after they have become due, particularly when they are deposited in execution of a decree obtained by the maintenance-holder , can be attached in execution of a decree obtained by a third person, against the maintenance-holder. We therefore agree with the learned Judge, who referred the case to us that the decision of the single Judge in AIR 1960 Andh Pra 353 (supra) was wrongly decided .

21. For the aforesaid reasons we dismiss the appeal with costs.

22. Appeal dismissed.


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