1. The respondent in this appeal was adjudicated insolvent in 1933. The appellant is his wife in whose favour a decree had been passed in 1932 awarding her mahar and maintenance at the rate of Rs. 5 a month, In 1934 she filed an execution petition for arrears of maintenance which were then due amounting, according to her, to Rs. 220 and prayed for the execution of her decree for that amount by the arrest of the respondent. The prayer was allowed by the first Court but was refused by the Appellate Court on the ground that her debt was one provable in insolvency and therefore she could not proceed1 to execute the decree for that debt without the leave of the Insolvency Court. It is against that decision that the present appeal has been filed by the wife.
2. Mr. Sesha Aiyangar in arguing the appeal for the appellant has laid very great stress upon two decisions of the English Courts - Linton v. Linton (1885) 15 Q.B.D. 239 and Kerr v. Kerr (1879) 2 Q.B.D. 439. Both these cases refer to the payment of alimony in England under the orders of the Divorce Court. In Linton v. Linton (1885) 15 Q.B.D. 239 the claim of the husband was that his whole obligation to pay alimony for the rest of his and his wife's life was a debt provable in bankruptcy and therefore that he would be entitled to a discharge from that debt as soon as he was discharged from Bankruptcy. The Court of Appeal held that this contention was wrong, that it was impossible to form a proper estimate of the value of the claim of the wife on the husband and therefore that this was a debt not provable in bankruptcy. In Kerr v. Kerr (1897) 2 Q.B.d. 439 the question came up whether a wife could prove in bankruptcy a claim for arrears of alimony which had accrued due before the receiving order and it was held that the considerations which had prevailed with the learned Judges in Linton v. Linton (1885) 15 Q.B.D. 239 equally applied to a case of such arrears and although arrears might be stated at a particular sum they were all subject to modification by the Divorce Court which had passed the original order for alimony and therefore they too were incapable of being fairly estimated. The law in India on this subject is contained in Section 34 of the Provincial Insolvency Act which runs as follows:
Debts which have been excluded from the schedule on the ground that their value as incapable of being fairly estimated...shall not be provable under this Act.
It seems to me that in considering this definition and the facts of the two English cases there is a clear distinction between orders for alimony and decrees for maintenance. Special facts were pointed out in the English cases to show that orders granting alimony were always subject to modification and change. When a decree has been passed awarding maintenance, that decree ordinarily remains immutable and although the judgment-debtor may take separate proceedings to have it modified it can never be modified retrospectively as the order for alimony in England can. The result is, it seems to me, that at any moment a wife who is a decree-holder under a decree of this kind can come to the Insolvency Court and say that her husband is indebted to her in a fixed sum and that therefore Section 34(1) which says that a debt is not provable in insolvency because the debt is incapable of being fairly estimated cannot possibly apply to a claim of this kind. There may possibly be some doubt as to the date on which the wife may make the application or the date up to which she may calculate her arrears. This will depend upon an interpretation of Section 34(2) as to from what date the obligation was incurred. It is unnecessary to decide this very interesting point now, for whether the debt provable in insolvency is the amount of arrears at the date of adjudication or at any subsequent date prior to the actual framing of the schedule it is undeniable that part at least of the Rs. 220 represents an obligation incurred before the date of adjudication. Therefore in either view of the correct date on which the amount of the debt is to be estimated, part of it was incurred before the adjudication and therefore the leave of the Insolvency Court must be necessary. The learned District Judge has already cited the case in Mahomed Ali Mithabhai In re : (1929)31BOMLR1366 in support of the view which he took. In my opinion his view was right and, as I have shown, the English cases which deal with a different situation and a different kind of order cannot prevail against it.
3. In the result this appeal must fail and is dismissed with costs.
4. Leave refused.