Ashutosh Bannerjee vs Lukhimoni Debya on 23 November, 1891

Calcutta High Court
Ashutosh Bannerjee vs Lukhimoni Debya on 23 November, 1891
Equivalent citations: (1892) ILR 19 Cal 139
Bench: W C Petheram, Kt., Prinsep, Pigot, O’Kinealy, Ghose


W. Comer Petheram, Kt., C.J., Peinsep, Pigot O’Kinealy and Ghose, JJ.

1. In this case a reference has been made to the Full Bench by the Chief Justice and Mr. Justice BEVERLEY sitting as a Divisional Bench of this Court, in connection with a decree obtained by the respondent, Srimati Lukhimoni Debya, against the appellant, Ashutosh Bannerjee. It appears that Lukhimoni had sued the appellant, Ashutosh, for maintenance. The litigation was carried up to the High Court, and, on the 4th January 1889, a decree was entered up by consent in the following terms: “It is ordered and declared by consent of parties that the decree of the lower Court be, and it hereby is, set aside, and, in lieu thereof, that the defendants Nos. 2 and 3 do pay, out of the estate of the late husband of the plaintiff, Rs. 2,000 on account of maintenance from September 1882 to December 1885, with interest at the rate of 6 per cent. per annum from the date of the lower Court’s decree until payment; and it is further ordered and decreed, by and with the like consent, that the defendants Nos. 2 and 3 do pay to the plaintiff, out of the estate of the late husband of the plaintiff, which is now in their hands, Rs. 50 per month on account of her maintenance from 1st January 1886, and onwards, during the life-time of the said plaintiff.”

2. And here it seems proper to point out that apart from the decision of the question referred to us, there appears on the face of the record sufficient reasons for upholding the decision of the lower Court. The decree was the decree of a Court possessing jurisdiction over the subject-matter of the suit and was made by consent of parties; and, even if it were irregular, as the learned Judges of the Division Bench think, still, on the authority of Pisani v. The Attorney-General for Gibraltar L.R., 5 P.C. 516 Sadasiva Pillai v. Ramalinga Plliai L.R. 2 I.A. 219 the appellant in this case having consented to the irregularity in the decree, is now precluded from raising any objection to its execution.

3. Some short time after the decree and in the same year 1889, the lady applied for execution and attached certain immoveable properties of the judgment-debtor. The judgment-debtor objected, and the execution proceedings seem to have been struck off without any portion of the decree having been realised. No point seems to have been raised in the pleadings or in the decisions of the lower Courts in this case as to the effect of this order, and we must hold that it does not affect in any way the reference now before us.

4. On the 19th September 1890, the decree-holder made another application for execution. The judgment-debtor objected on the ground that, so far as the decree awarded future maintenance, it was merely declaratory and could not be enforced without a regular suit. This objection was overruled by the Subordinate Judge, and against his decision the appellant appealed to this Court. In the grounds of appeal, he set forth the same objection which he had raised before the Subordinate Judge, namely, that upon a proper interpretation of the decree, the Court should have found that it was merely declaratory and gave no further relief, and, therefore, upon a correct interpretation of it, the lady’s remedy was by a regular suit, not in execution of the decree.

5. The Judges who made this reference say that, in support of the order of the lower Court, they have been referred to the following reported cases:Peareenath Brohmo v. Juggessuree 15 W.R. 128 Mansa Debi v. Jiwan Lal I.L.R. 9 All. 33 Lakshman Ramchandra Joshi v. Satyabhamabai I.L.R. 2 Bom. 494 Vishnu Shambhog v. Manjamma I.L.R. 9 Bom. 108 Shinthayee v. Thanakapudayen 4 Mad. H.C. 183 Muttia v.Virammal I.L.R. 10 Mad. 283 and they then proceed to say: “In these cases the Courts have held that a decree could be made directing the payment of maintenance in future, and that such future maintenance could be recovered in execution of that decree, and they have done so on the assumption that such a decree is analogous to a decree for money payable by instalments.”

6. From this opinion, however, they dissent, and, in order to have it finally decided, they have referred for the decision of a Full Bench the following question, namely, whether “a decree having been made declaring a person’s right to maintenance at a certain rate, and directing the payment of such maintenance in future, can the maintenance, when due, be recovered in execution of that decree without further suit?”

7. From the number of cases mentioned by the Judges who made this reference, it appears that this form of decree has existed for a long time. The case of Peareenath Brohmo v. Juggessuree 15 W.R. 128 was decided in 1871 and in the case of Sinthayee v. Thanakapudayen 4 Mad. H.C. 183 the Judges said that it had been the practice of the Courts for many years in the Presidency of Madras to make decrees for the payment of future maintenance to Hindu widows either by directing periodical payment of a fixed sum, or by setting apart a portion of the property and assigning the interest or proceeds thereof to the widow for her maintenance, and, in support of that assertion, the learned Judges referred to a case decided as far back as 1863.

8. The records of our own Court enable us to trace the same form of decree back to a much earlier date. Thus, in the case of Tohfa Dibia v. Pirthee Chund Rai 3 S.D. (Sel. Rep.) 134 decided by the Sudder Dewany Adalat in 1822, no objection seems to have been taken to a decree directing a monthly payment, and in the case of Hursoondri Goopta v. Nubogobind Sein 6 S.D. 422 decided by the Sudder Dewany Adalat on the 21st August 1850, maintenance was awarded at the rate of Rs. 15 monthly. The same form of decree appears to have been followed in the case of Mussummat Beelas Munjaree v. Hursoondree 7 8. D. 653 decided on the 17th November 1851. Nor are these the only authorities in support of the procedure followed by all the High Courts. In the case of Pirthee Singh v. Rani Raj Kooer 12 B.L.R. 238 a decree was passed in 1869 by the Subordinate Judge of Agra, directing maintenance at Rs. 150 a month, and providing both for arrears and future maintenance, and this decree was upheld without objection by the High Court of the North-Western Provinces in 1870 and by their Lordships of the Privy Council in 1873. A still earlier case is that of The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. 397 in which their Lordships of the Privy Council upheld a decree passed by the High Court of Madras in 1864, allowing maintenance at the rate of Rs. 10,000 yearly to one lady, and Rs. 833-5-4 monthly to another. It seems to us impossible to say that a form of decree adopted by all the Courts of this country sanctioned by the decisions of their Lordships of the Privy Council, and which has never been successfully attacked, can now be considered irregular. Indeed, so far from that being the case, it bears a striking resemblance to the form of decrees for maintenance given by Courts of Equity in England. We are unable, therefore, to agree with the learned Judges who made this reference, in dissenting from the series of authorities mentioned by them, and referred to in this judgment.

9. Nor is the second portion of the proposition placed before us less free from doubt. Not only do the cases referred to by the learned Judges show that it has been the universal practice, when relief is decreed in a suit of this nature, to grant that relief in execution of decree and not by a new suit, but the very point now referred was decided in the case of Sinthayee v. Thanakapudayen 4 Mad. H.C. 183. In the present case the mode of execution is referred to in Sections 230, Clause (b), and 255 of the Code. We think, therefore, that the question referred to the Full Bench must be answered in the affirmative, and that this appeal should be dismissed with costs.

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