Decided on February 05,1953



Mack, J. - (1.) THE appellant is the first judgment -debtor in execution proceedings taken out by the plaintiff in execution of a maintenance decree she obtained. The decree was against the deceased husband's joint family, represented by defendant 1, his brother, defendant 2 and other family members including the legal representatives of another brother Rudrappa, who died prior to suit.
(2.) THE decree charged two lots of property, one for maintenance subsequent to suit and the second, B schedule items, for arrears of maintenance and. provision for pilgrimage etc. The plaintiff sought in execution to attach some uncharged property in the possession of the first judgment debtor. The learned Subordinate Judge rejected one of the contentions that the widow should exhaust the charged property first, before reserving to further execution. The view taken by the learned Subordinate Judge is quite correct. It is settled law that a widow cannot be confined to property charged with her maintenance and that she need not exhaust it all before she can proceed against other property belonging to her husband's joint family. This has been decided in - - 'Srinivasa Iyer v. Lakshmi Animal', : AIR 1933 Mad 33 (A), on which the learned Subordinate Judge has relied. The contention raised before me, however, is that the learned Subordinate Judge has not gone into the main allegation in the first judgments debtor's counter that the decree -holder in collusion with and under the instigation of his brother, defendant 2, was vindictively proceeding against the first judgment -debtor's property only. My attention has been drawn to the lower Court judgment in which the learned Subordinate Judge referred to a partition deed, Ex. D. 1, of the year 1945 as between the three brothers from which he selected lands allotted to each brother and charged them with maintenance of this widow subsequent to suit. He made the following observations in his judgment : "I have chosen the S. Nos. so that all the defendants may be equally liable to pay the plaintiff's maintenance." It is also urged before me that there are observations in the appellate judgment of this Court, that there was some basis for a suggestion that the widow's brother was instigated by defendant 2 to file the maintenance suit. Mr. Srinivasagopala -chari for the respondent -widow is unable to say whether she has even proceeded against B schedule in execution for the arrears of her maintenance. I do not desire to say anything about the merits of the contention that the widow and defendant 2 are acting in collusion, as I think this is a case which should be remitted to the executing Court for a finding on the allegation contained in para. 4 of the judgments debtor's counter which the learned Subordinate Judge has not considered at all. There is I consider one ground on which a decree -holder can be deprived in any decree which gives concurrent remedies, as in the case of these maintenance decrees of option as to whom he or she should proceed against. If a judgment -debtor can satisfy the executing Court that the decree -holder is acting in "mala fide" collusion with one of the other judgment -debtors in execution against him only, the executing Court would be perfectly entitled to refuse execution, in a case such as this, until the charged property has been exhausted. No doubt defendant 1 would, if execution proceedings against him resulted in the sale of uncharged property which fell to his share at partition have the right to sue his brothers for reimbursement. But the existence of this right will not justify abuse of execution. What constitutes active "mala fide" collusion is a difficult matter to define and must depend on the facts of each case. When a serious allegation is made as in the present case, it should be resolved as a finding of fact on the material placed before the executing court. The Execution petition is remitted to the executing Court for disposal according to law after a finding on the collusion alleged in the counter.
(3.) MR . Srinivasagopalachari has brought to my notice a practice which must be deprecated. He complains that execution was stayed in the lower Court although a stay petition, O. M. P. No. 4641 of 1950 was dismissed on 24 -7 -1950 because all the papers in the execution proceedings had to be sent up to this Court for disposal of this appeal. It is regrettable that this appeal has been pending in this Court for so long but in the present case I am not prepared to say that any Injustice has been occasioned by the sale being deferred until the execution petition has been disposed of in the light of these observations. As a general practice, however, when a stay petition arising out of a C. M. A. or C. R. P. is dismissed, there should be no need whatsoever for a stay in fact to operate during the pendency of the main matter. The lower Courts should retain sufficient papers in their possession to proceed further with execution or any other matter, stay as regards which has been dismissed by this Court pending the disposal of the main appeal or petition. On this appeal I make no order as to costs.;

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