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L. Kallu Mal and ors. Vs. Mt. Barfo - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1938All362
AppellantL. Kallu Mal and ors.
RespondentMt. Barfo
Excerpt:
.....liberal construction ought to be put in interpreting decrees passed in suits to enforce claim for future maintenance and that, unless it clearly appears from the pleadings and from the decree that the intention was to grant a mere declaratory decree, the plaintiff decree-holder should not be forced to resort to repeated suits for the purpose of claiming the maintenance due to her. 31. we are not prepared to go as far as the patna high court, but we are clearly of the opinion that ordinarily a decree for future maintenance should be construed, unless there are some grave objections to the contrary, as a decree capable of execution. but the reasonable interpretation to be put on a decree like the present is that the monthly allowance will be payable to the plaintiff at the expiry of each..........the court granted to her a decree for a past period and merely declared her right to receive future maintenance at an annual rate from the defendant, the proper way of enforcing such a decree was by means of a separate suit and that the decree as regards the future maintenance declared by it was not capable of being enforced in execution. these cases proceeded on the well-recognized principle that mere declaratory decrees are not capable of execution. on the other hand in ashutosh banerjee v. lukhimoni debya (1892) 19 cal. 139 (f.b.) and lakshmi narayana v. suryanarayana : air1934mad680 it was held that when the decree for maintenance as regards the future was not a mere declaratory decree and directed the defendants to pay the future maintenance at a specified date the decree was.....
Judgment:

Iqbal Ahmad, J.

1. The question for consideration in the present appeal is whether a decree for maintenance obtained by the respondent who was a widow of a joint Hindu family of which the appellants are the surviving male members, was a mere declaratory decree or was a decree directing the appellants to pay maintenance in future to the respondent on a specified date, and on the answer to that question depends the decision of this appeal. It has been held in Vishnu Shambhog v. Manjamma (1885) 9 Bom. 108 and Ram Dial v. Indar Kuar (1894) 16 All 179, that where, upon a suit by a Hindu widow for maintenance, the Court granted to her a decree for a past period and merely declared her right to receive future maintenance at an annual rate from the defendant, the proper way of enforcing such a decree was by means of a separate suit and that the decree as regards the future maintenance declared by it was not capable of being enforced in execution. These cases proceeded on the well-recognized principle that mere declaratory decrees are not capable of execution. On the other hand in Ashutosh Banerjee v. Lukhimoni Debya (1892) 19 Cal. 139 (F.B.) and Lakshmi Narayana v. Suryanarayana : AIR1934Mad680 it was held that when the decree for maintenance as regards the future was not a mere declaratory decree and directed the defendants to pay the future maintenance at a specified date the decree was capable of being enforced in the execution department. These cases show that ordinarily a liberal construction ought to be put in interpreting decrees passed in suits to enforce claim for future maintenance and that, unless it clearly appears from the pleadings and from the decree that the intention was to grant a mere declaratory decree, the plaintiff decree-holder should not be forced to resort to repeated suits for the purpose of claiming the maintenance due to her.

2. The Patna High Court has gone to the length of holding that although the decree obtained for maintenance by a plaintiff be declaratory in form it is capable of execution : vide Hari Sankar Rai v. Tapaikuer (1926) 13 A.I.R. Pat. 31. We are not prepared to go as far as the Patna High Court, but we are clearly of the opinion that ordinarily a decree for future maintenance should be construed, unless there are some grave objections to the contrary, as a decree capable of execution. The very purpose of the institution of a suit for future maintenance is to ensure the due payment of the maintenance claimed by the plaintiff, and the plaintiff in a maintenance suit usually prays for a decree that may be capable of execution so that the plaintiff may not have to incur the trouble of the institution of fresh suits.

3. In the case before us, the plaintiff prayed for a decree ordering the defendants (the present appellants) to continue to pay a sum of Rs. 50 a month to her on account of maintenance and further prayed that she be given the right to realize the maintenance allowance fixed by the Court from the defendants and the properties of the joint family. The decree passed in the suit ran as follows:

The entire claim of the plaintiff be decreed. The plaintiff's maintenance is fixed at a rate of Rs. 30 a month which the defendants will be liable to pay to her every month....

4. This decree far from being a mere declaratory one contained a definite order directing the defendants to pay Rs. 30 a month on account of maintenance to the plaintiff-respondent. It is a fact that the date on which the maintenance was to be paid every month was not fixed by the Court. But the reasonable interpretation to be put on a decree like the present is that the monthly allowance will be payable to the plaintiff at the expiry of each month. This decree therefore embodied a direct and definite order enjoining the defendants to pay Ito the plaintiff the amount of Rupees 30 a month at the end of each month. The decree was therefore capable of execution. The learned Counsel for the appellants further argued that, having regard to the fact that the profits of the family property were reduced after the passing of the decree for maintenance, the plaintiff-respondent was not entitled to execute the decree with respect to the full amount of maintenance fixed. The short answer to this contention is that an execution Court cannot entertain an objection of the present description. The execution Court is bound to execute the decree as it stands. It may be that if the allegation about the reduction in the income of the family property is correct the appellants may have the right to get the amount fixed by the decree reduced by means of a separate suit. In our judgment the decision appealed against is perfectly correct and accordingly the appeal is dismissed with costs.


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