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Calcutta High Court
Matangini Dassee vs Chooneymoney Dassee And Ors. on 12 July, 1895
Equivalent citations: (1895) ILR 22 Cal 903
Author: Hill
Bench: Hill


JUDGMENT

Hill, J.

1. In my opinion the preliminary objection to the frame of the suit taken by Mr. Caspersz on behalf of the defendant, Hurro Lall Dutt, fails. The case of Ashutosh Bannerjee v. Lukhimoni Debya I.L.R. 19 Cal. 139 is to my mind clearly distinguishable from the present. There what was decided was that future maintenance awarded by a decree when falling due can be recovered in execution of that decree without further suit. The question referred to the Full Bench, and decided, had no bearing on the proper method of enforcing a decree charging property to secure future maintenance. Here the decree, which is the ultimate foundation of the suit, after declaring the amount payable to the plaintiff in respect of future maintenance, and that it should be a charge upon the house in Armenian Street, a specific item, that is, of the general estate, goes on to direct that for the purpose of securing the payment of the future maintenance a deed should be executed in favour of the plaintiff charging the house, on her executing a release of all her rights and interest in the general estate. This was done, and the present suit is brought on the deed for the enforcement of the charge so created. It appears to me on general principles that it would be impossible to give effect to this charge by proceedings in execution, or in any other manner than by a suit of the nature of the present.

2. Mr. Caspersz’s contention that it would be competent to the plaintiff to proceed from time to time as her maintenance accrued due against the house in Armenian Street by way of execution, is answered by the cases of Aubhoes sury Dabes v. Gouri Sunhur Pariday (ante, p. 859), and Chundra Nath Dey v. Burroda Shoondury Ghose (ante, p. 813), which shew that the proper method of enforcing a decree charging property with the payment of maintenance is by suit.

3. In relation to the objection taken by Mr. Chakravarti the case must stand over for one month in order that the estate of Protab Chunder Mullick against which the claim is in part preferred may be duly represented.


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