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Giribala Debi Vs. Nirmalabala Debi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1935Cal578,157Ind.Cas.1089
AppellantGiribala Debi
RespondentNirmalabala Debi
Cases ReferredTara Sundari Debi v. Saroda Charan
Excerpt:
- .....appeal relates to the legality or otherwise of the orders passed by the courts below holding that arrears of maintenance allowed by a criminal court under section 488, criminal p.c., were not liable to be attached and sold in execution of a decree for costs passed by a civil court. the orders were passed on an application made by the decree-holder under section 60, civil p.c. on the footing that the arrears of maintenance were debts within the meaning of the aforesaid provision of the law, and were attachable as such. the application for attachment was resisted by the judgment-debtor. the subordinate judge, by whom the question was dealt with in the first instance, came to the conclusion that maintenance allowance allowed by a court was not assignable and was not liable to be attached.....
Judgment:

1. The question arising for decision in this appeal relates to the legality or otherwise of the orders passed by the Courts below holding that arrears of maintenance allowed by a Criminal Court under Section 488, Criminal P.C., were not liable to be attached and sold in execution of a decree for costs passed by a civil Court. The orders were passed on an application made by the decree-holder under Section 60, Civil P.C. on the footing that the arrears of maintenance were debts within the meaning of the aforesaid provision of the law, and were attachable as such. The application for attachment was resisted by the judgment-debtor. The Subordinate Judge, by whom the question was dealt with in the first instance, came to the conclusion that maintenance allowance allowed by a Court was not assignable and was not liable to be attached in execution of a decree for money. The Additional District Judge, in the Court of appeal below, was of opinion that the case before the Court must be governed by the special provisions of the Criminal law, in which arrears of maintenance do not amount to debts or saleable property at all; and in that view of the case agreed with the primary Court in holding that the objection raised by the judgment-debtor was valid under the law.

2. The facts of the case giving rise to this appeal were not in dispute. The maintenance allowances payable to the judgment-debtor, and which were sought to be attached were in arrears; and there was no question that the arrears were legally due from the person held liable to pay the same by the order of the criminal Court under Section 488, Criminal P.C. The question that falls to be decided in the case before us is a question of first impression: whether arrears of maintenance payable under the order of a criminal Court does or does not constitute either debt or saleable property within the meaning of Section 60, Civil P.C.

3. It may be stated at the outset that the view presented by the Court of appeal below, that arrears of maintenance in the case before us were not attachable, for the reason that the order for payment of maintenance was passed by a criminal Court, does not commend itself to us. There appears to be no principle or authority in support of the position thus indicated by the Judge below, regard being had to the fact that there was no question that the arrears of maintenance were due, and were payable by the person against whom the order for maintenance was made by the criminal Court; there being no question whatsoever of enforcement of an order for maintenance as contemplated by Sub-section (3) of Section 488, Criminal P.C. The only matter for consideration then is whether, in view of the nature of the order for maintenance allowed in the case before us, could it be said that the arrears of maintenance were attachable property within the meaning of Section 60, Civil P.C., and closely connected with that question is the other question whether the order for maintenance in the case before us was a purely personal right to recover a sum of money. The right to receive maintenance was a purely personal right created by an order of a competent Court, it was inalienable. There was no charge created in property, by the order for maintenance in the ease before us, and the maintenance could not therefore be held to be alienable property. In our judgment, the right created by the order of the criminal Court was a personal one, a right which was not assignable and consequently not liable to be sold in execution of a decree for money, in view of the provision of Section 60, Civil P.C. In the case before us, the monthly allowance directed to be paid by the criminal Court was to be paid by the husband for maintenance of his wife; it was not in the nature of property, but only money to be paid by the order of the Court personally to the wife for her maintenance; it was not therefore assignable by the wife.

4. It may be mentioned that a number of decisions by this Court were placed before us for consideration, during the course of argument of this appeal, but we are unable to see that those decisions as they stand are of real assistance to any of the parties to this case. We are unable therefore to base our decision on any of the decisions cited before us: Mahatab Chand Bahadur v. Pearee Dossee (1866) 6 WR (Mis) 61; Hoymobuty Debia v. Koroonamoyee Debia (1867) 8 WR 41, Haridas Acharjia v. Boroda K. Acharjea (1900) 27 Cal 38; Asad Ali v. Haidar Ali (1911) 38 Cal 13; In the matter of Luddun Sahiba (1882) 8 Cal 736 and Ead Ali v. Lal Bibi, 1914 Cal 172; and we have given our decision as indicated above on general principles applicable to the facts of the case. So far as those principles go, we are supported by the observation of eminent Judges contained in the decision in In re Robinson (1884) 27 Ch D 160 where Cotton, L.J. expressly held that alimony as an allowance which the Court thinks right to be paid as the wife's maintenance from time to time, was not in the nature of property and not alienable. It may also be noticed that in Tara Sundari Debi v. Saroda Charan (1910) 12 CLJ 146, Sir Ashutosh Mukherji, J., observed in the course of his judgment that the true test to be applied in a case like the one before us, in which the question is raised whether maintenance allowance is attachable in execution of a decree for money, under the Code of Civil Procedure, is whether a purely personal right was created by an order for maintenance or not; if the right to receive maintenance allowance was only a personal right, as it is in the case before us, it was not assignable, and could not be held liable to be seized and sold in execution of a decree for money.

5. In the above view of the case, the orders passed by the Courts below, have to be affirmed and we direct accordingly. The appeal is dismissed with costs. The hearing fee in the appeal to this Court is assessed at two gold mohurs.


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