Wali Ullah, J.
1. This is an appeal by the decree-holder against an order passed by the Court below by which certain objections raised by the judgment-debtor were allowed and it was held that the decree in favour of the appellant was not capable of execution.
2. It appears that a decree for maintenance was passed in favour of Mt. Indra Devi, the decree-holder-appellant, against Babu Pirag Nath, the judgment-debtor. It was a decree for maintenance at the rate of RS. 70/- per mensem and a charge was created on the property of Babu Pirag Nath for future maintenance. Mt. Indra Devi has applied for execution of her decree for the total amount of maintenance that has fallen due, The judgment-debtor put forward the objection that the decree in favour of Mt. Indra Devi was only a declaratory decree and as such it was not capable of execution. This objection has found favour with the learned Civil Judge, who has, in his order, relied upon two cases decided by this Court : (1) the case of Alla Baksh v. Nisar Husian, 1 A. l. J. 541, a decision of a learned single Judge of this Court and (2) the case of Anupa Kuar v. Achhaibar Singh, 13 A. l. J. 38 : (A. I. R. (2) 1915 ALL. 61), a bench decision of this Court. The learned Civil Judge declined to consider certain rulings to the contrary of other Courts which were brought to his notice.
3. We have heard learned counsel for the parties. It seems to us that the appeal must be allowed. The two cases relied upon by the Court below do not seem to have any bearing on the question which the Court below was called upon to decide. In the case of Alla Bakhsh v. Nisar Husain, 1 A. l. J. 541, a decree had been passed in these terms :
'That the plaintiff's claim for possession of the disputed court-yard by demolition and removal of the Chabutra and the Nali be decreed.'
The decree-holder applied for execution of this decree. On notice being issued to the judgment-debtor objection was raised to the effect that Section 260, Civil P. C. (Order 21, Rule 33 of the present Code) was inapplicable to the decree in question. This objection was overruled and the judgment-debtor was sent to jail for disobedience of the notice Under Section 260. The Subordinate Judge in appeal affirmed the decree of the Munsif. In Appeal to the High Court the sole point for decision was whether or not Section 260, Civil P. C., of 1882 (Order 21, Rule 32, Civil P. C.) was applicable to the facts of the case. No general principle of any kind was laid down by this Court in this case. In the case of Anupa Kuar v. Achhaibar Singh, (13 A. L. J. 88 : A. I. R. (2) 1915 ALL. 61), the facts were that a suit for ejectment was instituted in a revenue Court. It ended in a compromise according to which the plaintiffs were to give to the defendant some grain and money for her maintenance every six months, and in case of non-payment, it was provided, that the defendant might take proceedings in a Competent Court. This compromise was incorporated in a decree. On an interpretation of the terms of this decree, it was held that the decree was declaratory only, and the holder of it had no right to execute it in the revenue Court. It was, however, declared that the decree-holder could bring a regular suit in the civil Court to enforce her right to maintenance. In none of these two cases was there any question of a decree for maintenance and a charge created for enforcing that decree.
4. Learned counsel for the appellant has invited our attention to a decision of a Full Bench of 5 learned Judges of the Calcutta High Court in the case of Ashutosh Bannerjee v. Lukhimoni Debya, 19 Cal. 139 (F.B.). The question referred to the Full Bench was worded thus :
'A decree having been made declaring a person's right to maintenance at a certain rate, and directing the payment of such maintenance in future, can the maintenance, when due, be recovered in execution of that decree without further suit ?'
The Pall Bench held that
'Future maintenance awarded by a decree when falling due can be recovered in execution' of that decree without further suit.'
5. Similarly, in the case of Abdul Muhammad Rowther v. Seethalakshmi Ammal, : AIR1931Mad120 it was held
'Where properties are specified in the decree and it is stated that future maintenance is to be recovered from those properties by selling them without attachment and this method is to be resorted to 'in default of measuring the paddy on the due date':
Held, that the decree made the future maintenance a charge on the said properties.'
It was further held;
'Where a decree makes maintenance a charge on specified properties, the decree-holder is entitled to realise the maintenance by executing the decree without having recourse to any suit.'
6. Again, in the case of Radha Krishna v. Mt. Bechni Debi, A. I. R. (24) 1937 pat. 654 : (172 I. C. 234), a bench of two learned Judges of the Patna High Court held
'Where a Hindu woman has obtained a decree declaring her right to maintenance and also declaring that the maintenance would be a charge on certain properties, the properties may be brought to sale in execution of the decree without any fresh suit for sale. The reason is that the bringing of the action for the declaration of the right to maintenance and obtaining a decree to that effect would result in the decree having the effect of a decree for sale of the charged properties. The language used by the Court in declaring the charge is not relevant.
7. To the same effect is the decision in the case of Hari Shankar Rai v. Tapai Kuer, A. I. R. (13) 1926 Pat. 31: (4 Pat. 693). In that case plaintiff obtained a decree declaring that she was entitled to a certain maintenance allowance from the defendant to be recovered from certain properties belonging to the defendant. In execution of this decree the plaintiff made an application for the recovery of a certain sum on account of arrears of maintenance by sale of the properties charged. It was held:
'that although the decree obtained by the plaintiff was declaratory in form it was capable of execution and the decree obtained by the plaintiff being a money decree the interest of the judgment-debtor in the properties charged with the payment of maintenance allowance could be gold in execution of the decree.'
It was further held that:
'The provision of Rule 11 of Order 34, Civil P. C., did not apply to a case.'
8. Lastly, we may refer to the case of Durga Prasad v. Mt. Tulsa Kuar : AIR1939All579 . In this case Mt. Tulsa Kuar obtained a decree for maintenance against one Bindeshwari Prasad and some others for arrears of maintenance and for future maintenance. The future maintenance was to be a burden on the house properties in the shares of Bindeshwari Prasad and others. The decree was put in execution and this house was sold and purchased by Dugra Praaad, but the sale was made expressly subject to the right of Mt. Tulsa Kuar for future maintenance. There was default in the payment of maintenance and Mt. Tulsa Kuar again applied for sale of the house purchased by Durga Prasad. Durga Prasad objected that the house could be sold only after a suit had been brought to enforce the charge. It was contended that it was necessary for Mt. Tulsa Kuar to bring a suit Under Section 67, Transfer of Property Act and Order 34, Rule 14, Civil P. C. It was held that the immovable property of Bindeshwari Prasad was not made security for the payment of money of Mt. Tulaa Kuar by any act of parties or by operation of law within the meaning of the Transfer of Property Act, and, therefore, it was not necessary for Mt. Tulsa Kuar to bring a suit Under Section 67 of the Act. It was further held that the provisions of Order 34, Rule 14, Civil P. C. had no application, even if the status of Mt. Tulsa Kuar be deemed to be that of a mortgagee for the simple reason that the decree obtained by her was not in satisfaction of a claim under the mortgage because prior to the decree she had no charge on any immovable property and it was only by virtue of the decrees that for the first time she acquired a charge. The learned Judges have followed the cases of Abdul Muhammad Bother v. Seethalakshmi Ammal : AIR1931Mad120 ; Sabitri Thakurain v. Mrs. F. A. Savi, A. I. R. (20) 1933 pat. 306: (12 Pat. 859) and Ambalal Bapubhai v. Narayan Tatyaba, 43 Bom. 631: (A. I. R. (6) .1919 Bom. 56).
9. In view of the authorities mentioned above and particularly the decision of this Court in the case of Durga Prasad v. Mt. Tulsa Kuar, 1939 A. L. J. 542; (26) 1939 ALL. 579). It must be held that the decree in favour of Mt. Indra Devi, the appellant, was a decree which could and should have been enforced by execution in the Court below.
10. We accordingly allow the appeal with costs, set aside the order of the Court below dated 6th January 1946, and send the case back to the Court below for carrying out the execution of the decree in accordance with law after deciding the remaining objections, if any, filed by the judgment-debtor,