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Chittoory Venkataraju Vs. themmana Sathiraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 252 of 1951
Judge
Reported inAIR1954Mad946
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60 and 60(1) - Order 21, Rule 48
AppellantChittoory Venkataraju
Respondentthemmana Sathiraju and ors.
Appellant AdvocateM.S. Ramachandra Rao and ;M. Krishna Rao, Advs.
Respondent AdvocateK. Mangachari, Adv.
DispositionAppeal dismissed
Cases ReferredTarachand v. Bakhshi Sher Singh
Excerpt:
- .....subordinate judge held that the decree-holder was not entitled to attach in execution a right to future maintenance and dismissed the petition with costs.2. a number of decisions have been considered by the subordinate judge, which do not appear to have applied and interpreted section 60(1)(n). civil p. c. in the same way. the leading decision on this point which has been sought to beapplied in cases of this kind is -- 'rajindra narain singh v. mt. sundar bibi', air. 1925 pc 116 (a), in which the privy council considered an application by a decree-holder for attachment and sale of 16 villages in execution, which the judgment-debtor obtained under the terms of a compromise deed in lieu of his maintenance without power of transfer and during the lifetime of his brother. their lordships.....
Judgment:

Mack, J.

1. Appellant is a decree-holder, who in execution of a decree for about Rs. 1700, sought to attach an allowance of Rs. 60 a month payable to the judgment-debtor under a will by his father by which he gifted five houses to a choultry with this direction to the trustees. The Subordinate Judge held that the decree-holder was not entitled to attach in execution a right to future maintenance and dismissed the petition with costs.

2. A number of decisions have been considered by the Subordinate Judge, which do not appear to have applied and interpreted Section 60(1)(n). Civil P. C. in the same way. The leading decision on this point which has been sought to beapplied in cases of this kind is -- 'Rajindra Narain Singh v. Mt. Sundar Bibi', AIR. 1925 PC 116 (A), in which the Privy Council considered an application by a decree-holder for attachment and sale of 16 villages in execution, which the judgment-debtor obtained under the terms of a compromise deed in lieu of his maintenance without power of transfer and during the lifetime of his brother. Their Lordships took the view that the appellant's interest in the villages was a right to future maintenance within Section 60(1)(n), Civil P. C. and, therefore, could not be attached and sold. In that case, they directed a Receiver to be appointed to realise the rents and profits from the lands with a direction to pay from out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family and to apply the balance in liquidation of the decree.

3. Some difficulties in interpreting this Privy Council decision were considered in -- 'Secretary of State v. Bai Some', AIR 1933 Bom 350 (B). That was a ease in which Government sought to attach a house charged with maintenance at the rate of Rs. 8 a month in favour of a pauper plaintiff in a compromise decree in a pauper suit in recovery of court-fee payable in that suit itself. Beaumont C. J. made the following observation : 'So far as I know, the Courts in England have always refused to sanction any form of equitable execution over property not liable to attachment at law. See -- 'Lucas v. Harris', (1886) 18 Q. B. D. 127 (C) and -- 'Crowe v. Price', (1889) 22 Q. B. D. 429 (D). The Privy Council cannot, I think, have intended to hold that the appointment of a Receiver by way of equitable execution is not attachment within Section 60(1)(n), Civil P. C., 1903, in a judgment in which the question is not discussed.'

The learned Bench considered that even if they had jurisdiction to appoint a Receiver, they ought not to do so, having regard to the small amount of maintenance, which was only Rs. 8 a month.

4. King J. in -- 'Sivaji Govind Rao v. N. N. C. T. C. V. firm', AIR 1935 Mad 815 (E), considered different classes of cases and made a differentiation, which also, with respect, is difficult to apply practically. In the case before him, the judgment-debtor had mortgaged all his property to a usufructuary mortgagee, one of the conditions being that he was entitled to receive from him an allowance of Rs. 100 a month. He claimed this allowance as being exempt from attachment under Section 60(1)(n) when it was sought to be attached. King J. agreeing with the District Judge, held that it was liable to attachment on the facts of that particular case, on the ground that, where the right is created for the first time by contract, it is always alienable and subject to attachment. The distinction made appears to be that if a right at first existed independently of a contract, in other words, a right derived from the personal law and personal relationship of the parties, it would have been protected from attachment.

In -- 'Aniruddha Mitra v. Official Receiver' : AIR1942Cal241 , in which a testator who had considerable property practically disinherited his son and gave him an allowance of Rs. 700 per month, it was construed to be a mere maintenance grant. The view taken there was that it was not necessary that there should be an antecedent obligation on the grantor to maintain the grantee under the-personal law of the parties in order to make it a maintenance grant.

In -- 'Tarachand v. Bakhshi Sher Singh', AIR 1936 Lah 944 (G), which is a case very similar to the one before me, a testator in his will provided for the future maintenance of his half-witted son, who was to get Rs. 100 a montn maintenance from his property. Agha Haider J. held that this sum could not be attached in execution as it amounted to a right of future maintenance.

5. The principles on which various courts have decided this matter are not easy to reconcile. With great respect and as it appears to me, Section 60(1)(n) exempts from attachment a right to future maintenance and there is a difference between selling a right to future maintenance and attaching such maintenance when it becomes payable, which is out of the category of future maintenance.

In , the Privy Council were considering a case for attachment and sale of 16 villages in execution, from which a sum of Rs. 800 was payable in lieu of maintenance. The type of eases where a maintenance allowance is sought to be attached or a portion of it as it falls due, as it appears to me, is not attachment of a right to future maintenance covered fay Section 60(1)(n). it is analogous to the attachment of salary or allowance payable to Government servants under Section 60(1) whose salaries upto the first Rs. 100 and one half of the remainder are exempt from attachment. In this category of cases, a portion of the salary which is not exempt, becomes attachable, when it is payable under procedure specifically provided by p. 21, Rule 48. I am myself unable to see how' a maintenance amount, when it becomes payable, can fall into the category of a right to future maintenance and total exemption claimed on this footing. The view that I am inclined to take is that executing courts must determine these cases each on its own facts without any hard and fast rule.

There may be cases where a wealthy father may constitute a trust out of which a large sum of money has to be paid each month for the maintenance of his son or in lieu of his maintenance. It is manifestly inequitable that this sum, if far in excess of the needs of the son for maintenance, should be put out of the reach of decree-holders; nor with respect to the view taken by King J. in -- 'AIR 1935 Mad 815 (E)' can a practical distinction be drawn in these cases between maintenance dependent on personal law, personal relationship and personal obligation and a right to maintenance created by a contract. It is for the executing court on the facts of each ease to determine how much of an allowance should be made attachable having regard to the circumstances of each case. In a case involving collection of rents from property out of which any maintenance is payable, the appropriate remedy described as equitable execution or indirect execution by appointment of a Receiver adopted by the Privy Council in -- 'AIR 1925 PC 116 (A)', appears to be in harmony with this view.

In this particular case, I have no hesitation in holding that Rs. 60 a month maintenance provision made by a father to his son is, taking into consideration the cost of living today, a, minimum maintenance provision, no portion of which is attachable by a decree-holder, who must look to some other asset or income of the judgment-debtor to proceed against in execution. If on the contrary, the maintenance the judgment-debtor was entitled to exceed Rs. 100, I would have had no hesitation in holding that a portion of the allowance was liable for attachment. I would fortify this view by a reference to Section 60(1)(n) itself, which exempts from attachment a right to future maintenance. Everything would depend upon the meaning of the word 'maintenance', that is, what in the opinion of the executing court is, in the circumstances of the case, a reasonable maintenance. I can myself see no impediment in restricting the exemption in Section 60(1)(n) to maintenance pure and simple and anything, which, in the opinion of the executing court, is in excess of mainten-ance not being exempt from attachment.

6. I would, in the result, dismiss the appeal,but without any order as to costs, on a line ofreasoning rather different from that adopted bythe learned Subordinate Judge.


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