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Sowbagia Ammal Vs. Manicka Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1917)33MLJ601
AppellantSowbagia Ammal
RespondentManicka Mudaliar and ors.
Cases ReferredSubbanna Bhatta v. Subbanna I.L.R.
Excerpt:
- .....in the plaint. on. appeal the high court modified the decree by substituting for the personal decree a decree making the maintenance payable out of the joint family properties in the hands of the defendants and by confining the charge to items 4 to 25 of the plaint. she applied to execute the decree by attachment and sale of certain items chargad with the maintenance. the judgment debtors objected on the ground that the decree holder can only proceed by a separate suit and the district judge following aubhoyessury dabee v. gouri sunkur pandey i.l.r. (1895) c 859 and venkatasubbamma v. venkanna (1907) 17 m.l.j. 217 upheld their contention and while granting the prayer for attachment, was of opinion that a separate suit for sale was necessary.2. we do not think that the order of the.....
Judgment:

1. The appellant obtained on the 30th September 1913 a maintenance decree in O.S. No. 44 of 1911 directing the defendants to pay her maintenance at Rs. 50 a month and charging the same on the properties specified in the plaint. On. appeal the High Court modified the decree by substituting for the personal decree a decree making the maintenance payable out of the joint family properties in the hands of the defendants and by confining the charge to items 4 to 25 of the plaint. She applied to execute the decree by attachment and sale of certain items chargad with the maintenance. The judgment debtors objected on the ground that the decree holder can only proceed by a separate suit and the District Judge following Aubhoyessury Dabee v. Gouri Sunkur Pandey I.L.R. (1895) C 859 and Venkatasubbamma v. Venkanna (1907) 17 M.L.J. 217 upheld their contention and while granting the prayer for attachment, was of opinion that a separate suit for sale was necessary.

2. We do not think that the order of the District Judge can be supported. Both the decisions referred to by him proceeded on Section 99 of the Transfer of Property Act which provided that '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 such property to sale otherwise than by instituting a suit under Section 67.' Section 99 of the Transfer of Property Act has bean repealed and has been re-enacted as Rule 14 of Order 34 of the Civil Procedure Code. The words 'whether arising under the mortgage or not ' in Section 99 of the Transfer of Property Act have been omitted and the operation of the prohibition is confined to a ' decree for the payment of money in satisfaction of a claim under the mortgage'. The effect of the change is that the mortgagee can have the mortgaged property sold in execution of a decree on a claim unconnected with the mortgage. Tarak Nath Adhikari v. Bhubhaneswar Mitra I.L.R. (1914) C. 780.

3. Having regard to the important change introduced by Order 34 Rule 14 we do not think that a separate suit is necessary where a Hindu widow seeks to execute a decree for maintenance which is charged on certain properties by sale of the properties charged. Though a widow has the right to seek the Court to charge any maintenance it might decree on the property of the family, there is no charge on the whole or any specified item till the decree declares it. Ram Kunwar v. Ram Dei I.L.R. (1900) A. 326, The Bharatpur State v. Gopal Dei I.L.R. (1901) A. 160, Manika Gramani v. Ellappa Chetti I.L.R. (1896) M. 271, Lakshman Rama Chandra Joshia v. Satyabama Bai I.L.R. (1877) B. 494, Raja Braja Sunder Deb v. Sarat Kumari (1916) 2. Pat. L.J. 55, Digambar Debi v. Dhan Kuwar Debl (1906) 4 C.L.J. 476. See also Mayne's Hindu Law, paragraphs 460 to 463.

4. We do not, therefore, think that prior to a decree charging maintenance on immeveable property a widow entitled to maintenance can be said to have a charge on the immoveable property within the meaning of Section 100 of the Transfer of Property Act. The position of the widow is that of a person who by virtue of the decree for the first time acquires a charge on specified immoveable properties and Order 34 Rule 14 has no application to her case.

5. Unless the case can be brought within Order 34 Rule 14 there can be little doubt that a decree for future maintenance can be executed by proceeding in execution against the properties charged thereby with the payment of the amount decreed. Ashutosh Bannerjee v. Lukhimoni Debya I.L.R. (1891) C 139, Asad Ali Molla v. Haider Ali I.L.R. (1910) C. 13, Minakshi Achi v. Sadasiva Udayan I.L.R. (1901) M. 689, Subbanna Bhatta v. Subbanna I.L.R. (1807) M. 324.

6. We are of opinion that the plaintiff is entitled to execute her decree by bringing to sale the properties charged with her maintenance. We reverse the order of the District Court and direct that the execution petition be restored to file and dealt with according to law. Respondents will pay appellant's costs in this and the lower court.


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