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Luckhi Ram Vs. Salamat HosseIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal521
AppellantLuckhi Ram
RespondentSalamat HosseIn and anr.
Cases ReferredNilkanto Dey v. Hurrosoonderee Dossee I.L.R.
Excerpt:
civil procedure code (act xiv of 1882), section 266, proviso, clause 1 - attachment of monthly allowance. - .....deceased wife to whom it was assigned in lieu of her share of landed property. it is thus not a mere right to maintenance, nor anything else exempted by the proviso to section 266; and as the appellant himself mortgaged it with a stipulation that it should, if necessary, be sold for the liquidation of his debt, it does not lie in his mouth to deny that it can be seized and sold. his pleader has relied upon the case of nilkanto dey v. hurrosoonderee dossee i.l.r. 3 cal. 414 in which a question arose as to the attachment of malikana payable by the collector to the judgment-debtor. but in that case it was not ruled that the right to malikana, could not be sold; but only that the attachment was not sufficiently made by the mere issue of a notice to the collector under section 237 of act.....
Judgment:

Tottenham, J.

1. The only question laid before us in this appeal is whether or not the right to receive a certain monthly allowance is seizable and saleable hi execution of a decree. The appellant, Salamat Hossein, who is the party entitled to the allowance, mortgaged it under a bond executed by himself and other persons to the plaintiff respondent in consideration of a loan advanced by the latter. The decree provides for the realization of the amount due by the sale in the first place of the mortgaged property.

2. It is contended that the right to receive the allowance is not property which can be seized in execution under Section 266 of the Code of Civil Procedure. It seems to us that, under the circumstances, it is saleable, for it is shown to be a heritable right derived by the appellant from his deceased wife to whom it was assigned in lieu of her share of landed property. It is thus not a mere right to maintenance, nor anything else exempted by the proviso to Section 266; and as the appellant himself mortgaged it with a stipulation that it should, if necessary, be sold for the liquidation of his debt, it does not lie in his mouth to deny that it can be seized and sold. His pleader has relied upon the case of Nilkanto Dey v. Hurrosoonderee Dossee I.L.R. 3 Cal. 414 in which a question arose as to the attachment of malikana payable by the Collector to the judgment-debtor. But in that case it was not ruled that the right to malikana, could not be sold; but only that the attachment was not sufficiently made by the mere issue of a notice to the Collector under Section 237 of Act VIII of 1859. The case does not help the appellants before us. We granted time to enable the parties to come, if possible, to an amicable settlement, but they have found it impossible to do so; and we do not see our way to impose terms on the plaintiff or to stay execution. The appeal must be dismissed with costs.


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