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Durga Prasad Vs. Mt. Tulsa Kuar - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All579
AppellantDurga Prasad
RespondentMt. Tulsa Kuar
Excerpt:
- - act, the said cases cannot be considered to be good law. there has been no default by the other judgment-debtor and therefore the cross-objections also fail and are dismissed with costs......p.c, to the execution of a decree. the facts giving rise to this appeal may be briefly stated. mt. tulsa kuar, the respondent in this court, obtained a decree for maintenance against bindeshwari prasad and some others. bindeshwari prasad was liable to pay half the amount of the maintenance and certain other defendants were liable to pay the other half. the decree was for arrears of maintenance and for future maintenance. it was provided that future maintenance which had been decreed to the plaintiff would be a burden (bar) on the house properties which were in the shares of bindeshwari prasad and kali prasad. the decree was put in execution against bindeswari prasad and the house in dispute was sold and was purchased by durga prasad, the appellant before us. it is of some importance to.....
Judgment:

Bajpai, J.

1. This is an execution second appeal by Durga Prasad who objected in the Courts below under Section 47, Civil P.C, to the execution of a decree. The facts giving rise to this appeal may be briefly stated. Mt. Tulsa Kuar, the respondent in this Court, obtained a decree for maintenance against Bindeshwari Prasad and some others. Bindeshwari Prasad was liable to pay half the amount of the maintenance and certain other defendants were liable to pay the other half. The decree was for arrears of maintenance and for future maintenance. It was provided that future maintenance which had been decreed to the plaintiff would be a burden (bar) on the house properties which were in the shares of Bindeshwari Prasad and Kali Prasad. The decree was put in execution against Bindeswari Prasad and the house in dispute was sold and was purchased by Durga Prasad, the appellant before us. It is of some importance to note that the sale was made expressly subject to Mt. Tulsa's right of future maintenance. There was again default in the payment of maintenance and Mt. Tulsa Kuar once more applied for sale of the house which Durga Prasad had purchased and Durga Prasad's principal objection was that the house could only be sold after a suit had been brought to enforce the charge.

2. This objection was disallowed by the trial Court and the lower Appellate Court agreed with the trial Court; hence the second appeal by Durga Prasad, and his contention before us is that as the decree did not, in terms or by implication, say that the house could be sold in execution proceedings when future maintenance accrued from time to time to Mt. Tulsa Kuar, the only method in which Mt. Tulsa Kuar could obtain relief was by means of a suit, and our attention was drawn to Sections 100 and 67, T.P. Act, and to Order 34, Rules 14 and 15, Civil P.C. It is said that a charge was created on immovable property by the decree within the meaning of Section 100, T.P. Act, and under Order 34, Rule 15 all the provisions contained in Order 34, which apply to a simple mortgage, shall, so far as may be, apply to a charge within the meaning of Section 100, T.P. Act, and therefore it was necessary for Mt. Tulsa Kuar to bring a suit under Section 67, T.P. Act, and further Mt. Tulsa Kuar was not entitled to bring the charged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage in view of the provisions of Order 34, Rule 14, Civil P.C. It is clear that prior to a decree a widow entitled to maintenance cannot be said to have a charge on the immovable property in the possession of the members of her husband's family. It was held in the case in Bharatpur State v. Gopal Dei (1902) 24 All. 160 that

the right of a Hindu widow to maintenance is not a charge upon the estate of her deceased husband unless and until it is fixed and charged upon the estate by a decree or by agreement.

3. It may be conceded that in the present case future maintenance accruing to Mt. Tulsa Kuar was made a charge upon the house in the possession of Bindeshwari Prasad and Kali Prasad. The question that we had then got to decide is whether this charge was created within the meaning of Section 100, T.P. Act, so as to attract the provisions of law enjoined in the case of a simple mortgage by reason of Order 34, Rule 15, Civil P.C. Section 100, T.P. Act, says that:

Where immovable property of one person Is by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be apply to such charge.

4. In the case before us the immovable property of Bindeshwari Prasad was not made security for the payment of money of Mt. Tulsa Kuar by any act of parties or by operation of law. It was only by virtue of a decree that a charge was created on certain specified immovable properties. It was not therefore necessary for Mt. Tulsa Kuar to bring a suit under Section 67, T.P. Act. It was then said that Order 34, Rule 14, Civil P.C., was a bar in the way of Mt. Tulsa Kuar, and certain cases support the view of the appellant, but, it is not necessary to mention them because in view of the change in Order 34, Rule 14, Civil P.C., which in some respects corresponds to Section 99, T.P. Act, the said cases cannot be considered to be good law. Under Section 99, T.P. Act,

where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring the property to sale otherwise than by instituting a suit under Section 67.

5. Section 99, T.P. Act, has been repealed and Order 34, Rule 14, Civil P.C., has been substituted therefor, but the important words 'whether arising under the mortgage or not' in Section 99, T.P. Act, have been omitted and the restriction is limited to 'a decree for the payment of money in satisfaction of a claim arising under the mortgage.' If the status of Mt. Tulsa Kuar be deemed to be that of a mortgagee it is obvious that the decree for the payment of money which she obtained was not in satisfaction of a claim under the mortgage because, as we said before, prior to the decree she had no charge on any immovable property and it was only by virtue of the decree that for the first time she acquired a charge. The effect of this change in the provisions of Order 34, Rule 14, Civil P.C., is that a mortgagee can have the mortgaged property sold in execution of the decree on a claim which is not connected with the mortgage. We are fortified in the view that we have taken by several decisions of various High Courts, such as the cases in Sowbagia Ammal v. manika Mudali (1918) 5 A.I.R. Mad. 668, Abdul Muhammad v. Seetha Lakshmi : AIR1931Mad120 , Ambalal v. Narayan (1919) 6 A.I.R. Bom. 56, Indramani v. Surendra (1922) 9 A.I.R. Cal. 35 and Sabitri v. F.A. Savi (1933) 20 A.I.R. Pat. 306. For the reasons given above, we dismiss this appeal with costs. There has been no default by the other judgment-debtor and therefore the cross-objections also fail and are dismissed with costs.


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