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Smt. Hemangini Dassi Vs. Sm. Rashmoni Dassi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 156 of 1961
Judge
Reported inAIR1970Cal37,73CWN625
ActsCode of Civil Procedure (CPC) , 1908 - Section 47
AppellantSmt. Hemangini Dassi
RespondentSm. Rashmoni Dassi
Advocates:Rabindra Nath Mitra and ;Mahendra Kumar Ghose, Advs.
DispositionAppeal allowed
Cases ReferredAbdul Muhamed v. Seethalakshmi.
Excerpt:
- .....a short point arises for determination in this appeal. it is as to whether a decree in respect of future maintenance can be enforced in execution without having recourse to any further suit or not.2. the appellant before us had filed a suit against the respondent for a declaration that she was entitled to future maintenance at the rate of rs. 20/- per month and for recovery of arrears of maintenance at that rate and also for granting a charge in respect of kha schedule properties for arrears of maintenance and future maintenance. the decree in that suit, as modified by this court, was to the effect that the plaintiff was entitled to future maintenance at the rate of rs. 20/- per month and that a charge on the kha schedule properties was declared with respect to the future maintenance......
Judgment:

S.K. Chakravarti, J.

1. A short point arises for determination in this appeal. It is as to whether a decree in respect of future maintenance can be enforced in execution without having recourse to any further suit or not.

2. The appellant before us had filed a suit against the respondent for a declaration that she was entitled to future maintenance at the rate of Rs. 20/- per month and for recovery of arrears of maintenance at that rate and also for granting a charge in respect of Kha schedule properties for arrears of maintenance and future maintenance. The decree in that suit, as modified by this Court, was to the effect that the plaintiff was entitled to future maintenance at the rate of Rs. 20/- per month and that a charge on the Kha schedule properties was declared with respect to the future maintenance. There was also a decree for recovery of arrears of maintenance at the rate of Rs. 20/- per mensem.

3. The appellant put the decree Into execution not only for realisation of arrears of maintenance but also for the future maintenance due to her on the basis of that decree. The respondent filed an application under Section 47 of the Code of Civil Procedure alleging therein that the decree-holder was not entitled to realise future maintenance at the rate of Rs. 20/- per month without bringing a fresh suit and obtaining a decree therein. This plea prevailed with the learned Subordinate Judge as also with the learned District Judge sitting in appeal.

4. In this appeal by the decree holder it is contended by Mr. Mitra that both the courts below erred in so holding. Though the decree with regard to the future maintenance in this particular case was in the form of a declaratory one, still, in substance, it directed the respondent to pay to the appellant a sum of Rs. 20/- per month byway of maintenance, and Mr. Mitra submits that the future maintenance may be realised In execution. The same question arose for determination before a Full Bench of this Court Ashutosh Banerjee v. Lukhimoni Debya, (1892) ILR 19 Cal 139 (FB), and the question was answered in the affirmative. It was subsequently follow' ed by this Court in Asad All Mollah v. Haidar Ali, (1911) ILR 38 Cal 13. The same principle has also been laid down in Sm. Indra Devi v. B. Pirag Nath : AIR1950All210 and also in Sankaran Pankajakshan v. Narayana Pillai Velayudhan Pillai, AIR 1957 Trav Co. 90, by the Patna High Court in Sah Radhakrishna v. Md. Bechui Devi, AIR 1937 Pat 654 and by the Madras High Court in Abdul Muhamed v. Seethalakshmi. AIR 1913 Mad 120.

5. The learned District Judge appears to have relied on Section 581 of Mulla's Principles of Hindu Law (12th Edn.) at p. 728. There also it has been laid down that a decree which directs the payment of future maintenance from time to time can be enforced by execution, but a decree which merely declares a right of maintenance cannot be so enforced. Here there was not only a right of maintenance declared but the amount was also fixed and property charged and in the Madras decision, which has also been referred to in Section 581 of Mulla's book, it has been held that such a decree is executable. The learned Judge appears to have misread Section 581 of Mulla's Hindu Law.

6. As a matter of fact, the decisions of the different High Courts are quite unanimous on this point that in such a case the party concerned need not be compelled to file another suit claiming arrears of maintenance, but that the right to maintenance may be enforced in execution of the original decree. In this view of the matter, the appeal is allowed, the judgments and orders passed by the courts below are set aside and the Misc. Case filed under Section 47 of the Code of Civil Procedure is dismissed and it is directed that the execution case do proceed in accordance with law, in the light of the observations mentioned above.

7. There will be no order as to costs in this appeal.

8. We may also note that the respondent has not appeared in this proceeding before us.

P.N. Mookerjee, A.C.J.

9. I agree.


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