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Allahabad High Court
Jiwan Lal And Ors. vs Mansa Debi on 10 August, 1886
Equivalent citations: (1887) ILR 9 All 33
Author: Oldfield
Bench: Oldfield, Mahmood


JUDGMENT

Oldfield, J.

1. This appeal raises a question as to the proper interpretation for the purposes of execution, to be given to a decree dated the 19th July 1914, modifying a decree of the Subordinate Judge dated the 18th July 1883. The suit in which those decrees were passed was brought to have an allowance, by way of maintenance, awarded to the plaintiff, payable by the defendant,. The decision of the Subordinate Judge directed that a sum of Rs. 15 per mensem should be paid by the defendants to the plaintiff, and this Court affirmed that portion of the decree, but modified the remainder by directing that such allowance should be charged on certain zamindari property. The decree-holder has taken out execution of decree for a sum of money as maintenance at Rs. 15 per mensem, from the 28th October 1882, to the 28th May 1885, and costs. The Subordinate Judge has allowed execution to proceed for the costs, but disallowed it for the remainder of the decree on the ground that the decree must be looked upon as a declaratory decree merely, and the decree-holder’s remedy is to bring suits for arrears of maintenance as they fall due. An appeal has been filed by the decree-holder, and in my opinion the plea that the decree sought to be executed has been misconstrued by the lower Court is valid. The decree directed defendants to pay every month, during the lifetime of the plaintiff, the sum of Rs. 15, and I see no reason why that sum cannot be obtained by the decree-holder in execution thereof. The decree is more than a mere declaration of right, and in this view I am supported by Peareenath Brohmo v. Juggessuree, 15 W. R., 128. Norman, C. J., giving judgment in that case, said that in the Court’s opinion a decree for maintenance, by payment of a fixed rate per mensem, stands exactly on the footing of a decree ordering payment by instalments. Concurring in this view, I would modify the order of the Subordinate Judge dated the 1st August 1882, and direct that the decree-holder’s application be dealt with in accordance with these remarks.

Mahmood, J.

2. I am entirely of the same opinion.


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