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Sowbagia Ammal Vs. Manika Mudali and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in42Ind.Cas.975
AppellantSowbagia Ammal
RespondentManika Mudali and ors.
Cases ReferredSubbanna Bhatta v. Subbanna
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rules 14, 4 - transfer of property act (iv of 1882), sections 67 99, 100--hindu law--widow--maintenance decree charged on property--execution--sale of property--fresh suit, whether necessary. - .....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 nos. 4 to 25 of the plaint. she applied to execute the decree by attachment and sale of certain items charged with the maintenance. the judgement-debtors objected on the ground that the decree-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 panday 11 ind. dec. 568, and venkatasubhamma v. venkanna 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.....
Judgment:

1. The appellant obtained on the 30th September 1913 a maintenance decree in Original Suit 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 Nos. 4 to 25 of the plaint. She applied to execute the decree by attachment and sale of certain items charged with the maintenance. The judgement-debtors objected on the ground that the decree-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 Panday 11 Ind. Dec. 568, and Venkatasubhamma v. Venkanna 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 'when a mortgagee, on 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 the property to sale Otherwise than by instituting a suit under Section 67.' Section 99 of the Transfer of Property Act has been repealed and has been re-enacted as rule 14 of Order XXXIV 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 emitted, and the operation of the prohibition is confined to 'decrees for the payment of money in satisfaction of claims 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. Bhubaneswar Mitra 30 Ind. Cas. 988: 42 C. 780.

3. Having regard to the important change introduced by Order XXXIV, 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 ask the Court to charge any maintenance it might decree on the property of the family, there is no charge on the whole or any specific item till the decree declares it. Ram Kunwar v. Ram Dai .(1900) A. W. N 97. Bharatpur State v. Gopal Dei (1901) A. W. N. 207. Manika Gramani v. Ellappa Chetti, 19 M.K 271: 6 Ind. Dec.894. Lakshman Ramchandra Joshia v. Satyabhamabai 1 Ind. Dec. 752. Brajasunder Deb v. Sarat Kumari 38 Ind. Cas. 791: (1917) Pat. 67. Digambari Debi v. Dhan Kumari Debi 10 C. W. N. 1074. See also Mayne's Hindu Law, paragraphs 460 to 463.

4. We do not think that prior to a decree charging maintenance on immoveable 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 a decree for the first time, acquires a charge on specified immoveable properties and Order XXXIV, rule 14; has no application to her case.

5. Unless the case can be brought within Order XXXIV, 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. Lukbimoni Debya 9 Ind. Dec. 538. Asad Ali Molla v. Haider Ali 6 Ind. Cas. 826. Minakshi Achi v. Chinnappa Udayan 24 M. 689. Subbanna Bhatta v. Subbanna 2 M. L. T. 83: 17 M. L. J. 150. 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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