1. This is an appeal by the husband against whom a suit for maintenance was decreed by the learned Civil Judge of Allahabad. The suit was brought in forma pauperis and after the necessary proceedings, it culminated into a compromise decree, the terms of which, such as are material for the purpose of this appeal, are as below:
(i) If the defendant makes a default in paying monthly allowance for six months, the plaintiff will be entitled to realise the sum by execution of this decree. The maintenance will be charged on the property detailed below, (ii) The defendants shall pay a sum of Us. 10,000 (Rupees ten thousand) to the plaintiff and she will have full proprietary right over this sum and the defendant will have no right in that amount whatsoever....
Then follow certain other conditions which are not material. There are, however, two other clauses which are germane to the controversy before us:
(a) Babu Kanhaiya Lai has no objection to the creation of this charge over whole of the house No. 31/1, Baranasi Ghose Street, Calcutta, (b) The defendant stipulates that the house No. 31/1, Baranasi Ghose Street, Calcutta, is free from all incumbrances. If the house given in charge has any prior encumbrance, the charge shall shift to other property of Babu Nand Lal Kapur of equal value.
2. The suit wag instituted in January 1941, and the compromise decree was passed on 21st July 1943. The plaintiff, at the time of the institution, described herself in the plaint as aged twenty years and her husband was twenty-two. It is, therefore, obvious that the defendant is also a very young man. The plaintiff put the decree in execution and sought to proceed against the person of her husband. Her attempt was resisted on the grounds that the terms of the compromise decree ruled out any attempt against the person of the judgment-debtor. The learned Civil Judge held that it was open to the decree-holder to proceed against the person of her husband before proceeding against the property. The judgment-debtor has come in appeal before us.
3. The learned Counsel for the appellant has stated that the sum of Rs. 10,000 has already been paid by his client. The learned Counsel for the respondent does not challenge this statement. The learned Counsel for the appellant strenuously contends that the decree-holder is not entitled to proceed against the person of the judgment-debtor before proceeding in execution against the property, upon which a charge was created. In support of his contention he takes his stand upon Ramabai Balkrishna v. Janardan Eknath ('43) 30 A.I.R. 1943 Bom. 158. This is a single Judge judgment, but it reviews almost all the previous authorities, principally the two cases : Raychand v. Basappa ('41) 28 A.I.R. 1941 Bom. 71 at p. 77 and Guruppa Gurushiddappa v. Amarangji Vanichand ('41) 28 A.I.R. 1941 Bom. 90. We do not think any of these cases is strictly in point. We are confronted only with the question as to whether it is open to the decree-holder to proceed against the person of the judgment debtor without exhausting her remedies against the property in respect of which the charge has been created. The learned Counsel for the respondent has taken his stand principally upon Babu Rao Balwant Rao v. Mt. Gopika Bai ('42) 29 A.I.R. 1942 Nag. 58. This case too is not strictly in point. He has also relied upon S. Srinivasa Ayyar v. Lakshmi Ammal ('33) 20 A.I.R. 1933 Mad. 33. This case is authority for the proposition that:
In the case of maintenance decrees providing concurrent remedies of a decree against the family properties and a charge on specific items thereof it is not incumbent on the plaintiff to proceed against the security in the first instance unless the defendant satisfies the Court that the plaintiff's action in not doing so is mala fide, oppressive and not taken for a legitimate purpose. Considerations applicable to mortgage deorees do not apply in such cases.
What is important, however, is that it gives a right to the decree-holder to proceed against the person of the judgment-debtor, without proceeding against the property, only if he satisfies the Court that his conduct is not mala fide, oppressive but is for a legitimate purpose.
4. The present is a case in which the facts speak for themselves. The compromise decree fixed a certain sum as maintenance allowance. It cast an obligation upon the judgment-debtor to pay a sum of Rs. 10,000. It also created a charge upon certain property. It further provided that, in the event of the property charged not being available to the decree-holder, the charge shall shift to some other property. When we bear in mind that a sum of Rs. 10,000 has already been paid and that no attempt has been made to proceed against the property in respect of which the charge has been created or against the other property, the conclusion is irresistible that this is not a bona fide application. It is, therefore, obvious, on the authority of the Madras case, S. Srinivasa Ayyar v. Lakshmi Ammal ('33) 20 A.I.R. 1933 Mad. 33 that the respondent should not be allowed to proceed against the person of her husband before she has made an attempt to execute her decree against the property charged. We, therefore, allow the appeal, set aside the order of the Court below and dismiss the present application for execution. It will be open to the decree-holder to proceed against the property in respect of which the charge has been created. The parties shall bear their own costs of this appeal.