Decided on February 14,1950

G Venkata Rangamma Respondents


JAGANNADHADAS, J. - (1.) THE Province of Orissa ig the appellant in this appeal. It arises out of an application for execution filed by the Government to recover the costs of a suit in forma pauperis decreed in favour of the plaintiff therein. In T. S. No. 9/45, one G. Venkata Rangamma, filed a suit for enhancement of her maintenance against one G. Gunnamma the former being the mother -in -law of the latter, who was in possession and enjoyment of her deceased husband's ancestral property. The suit was in forma pauperis. The Court decreed enhanced maintenance at the rate of Ra. 480 per year payable by 15th September of every year commencing from the year 1944 -45, the first payment falling due on 18th September 1945, with a charge on the plaint schedule properties for the same. The plaintiff's claim for arrears of maintenance was disallowed. In view of the fact that the plaintiff made an exaggerated claim of Rs. 1200 per year and also for arrears at that rate and since the major portion of the plaintiff's claim was disallowed, the learned Subordinate Judge ordered that the parties shall bear their own coats and also that the court -fees payable to the Government in respect of the pauper -plaint should be recoverable from the plaintiff herself. By execution application No. e. P. 252/46 filed on 21st October 1946 against both the plaintiff and the defendant in the pauper suit, the Government applied for recovery of the amount due to it towards the stamp duty on the plaint namely, Rs. 696 -4 -0, plus the execution costs. The relief that was asked for in the execution application was in the following terms : 'The decree -holder prays that the amounts claimed in cols. 7 and 8 may be realised with subsequent costs by issuing notice under Order 21, Rule 22, Civil P. C., and thereafter by attaching the arrears due to the plaintiff -decree -holder under the decree, by appointing a receiver to collect the future maintenance due to the plaintiff under the above decree under Order 21, Rule 53 and Order 21, Rule 11, Civil P. C. and the said amount after realisation, may be paid over to the decree -holder Government. The executing decree -holder Government submits that an ad interim order of attachment prohibiting the second judgment debtor from making any payment to the plaintiff first judgment -debtor in the above case or to anybody on her behalf may be passed simultaneously with the issue of notice to the judgment -debtor as otherwise the interest of the executing decree -holder may be seriously prejudiced.'
(2.) THIS execution was contested by the first judgment -debtor (the plaintiff in the pauper -suit) on the ground that the right to maintenance obtained by her under the decree was not attachable. The learned Subordinate Judge by his order dated 16th April 1947 upheld this contention. He held that by virtue of the provisions of Section 60(1)(n), Civil P. C., under which a right to future maintenance is not attachable, the decree obtained by the first judgment -debtor against the second was not attachable. As regards the prayer for appointment of a receiver he held relying on Secy. of State v. Bai Some, A. I. R. (20) 1933 Bom. 350 : (57 Bom. 507), that the appointment of a receiver in execution virtually amounts to an attachment of the decree which in his view was prohibited by Section 60 and that therefore the relief by way appointment of a receiver could not be granted. As regards the prayer for attachment of arrears of maintenance, he refused the same on the ground that there was no arrears of maintenance granted under the decree. It is against this order of the Subordinate Judge that the Government have come up in appeal to this Court. The order of the learned Subordinate Judge is clearly wrong so far as the prayer in respect of the arrears of maintenance is concerned. It is true that under the decree, arrears prior to the date of the suit have been disallowed, but the decree itself as already stated, directs payments of maintenance from the year 1944 -45, the first payment falling due on 15th September 1945. The execution application was filed on 21st October 1946. By that date two payments under the decree were due to be made on 15th September 1945 and 15th September 1946. If they remained unpaid, there was no reason why the attachment could not have been allowed in respect of such arrears. It is not disputed that the] prohibition against attachment in respect of maintenance applies only to future maintenance and not to arrears of maintenance. There is ample authority for the same and it is enough to refer to the case in Asid Ali v. Haidar Ali, 88 Cal. 13 : (6 I. C. 826) in support of it. What the exact effect of this view would be with reference to what has so far transpired in this case, will be indicated towards the close of the judgment.
(3.) THE substantial question, however, that arises for decision in this appeal is whether the learned Subordinate Judge is right in his view that the Government is not entitled to relief by way of attachment or appointment of a receiver in respect of future maintenance. Under Order 33, Rule 10, Civil P. C., the amount payable as court -fee in respect of a pauper -plaint shall be recoverable by the Government from any party ordered to pay the same and shall be a first charge on the subject -matter of the suit. By virtue of Rules 12 and 13 of the same order, the Government can recover the said amount by an application, which is to be treated as one in execution. The subject -matter of the suit in the present case is the right to recover maintenance, with a charge on specified properties. There can be no doubt that the Government have a first charge on this right to maintenance as decreed with the benefit of the charge in favour of the first judgment -debter: see Gadadhar Mandal v. Manaka Dassi, A.I. R. (13) 1996 Cal. 859 at page 860: (94 I. 0. 391). The only question is how that charge in favour of the Government is to be realised or whether the Government have no remedy at all on account of the prohibition against attachment of the right of maintenance under Section 60(1)(n), Civil P. C., and the prohibition against the transfer of the right to future maintenance by virtue of Section 6(dd), T. P. Act.;

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