Ranganath Misra, J. - (1.) This appeal by certificate from the Calcutta High Court raises the questionwhether a decree for permanent alimony passed under Section 37 of the Special Marriage Act, 1954 (hereafter referred to as 'the Act'), is wiped out with the death of the husband - Judgment-debtor.
(2.) Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act, 1872, in January, 1952. Respondent asked for divorce in 1961 and obtained a decree on May 2, 1962, to the effect: "The petitioner's (Dorothea Mitra's) marriage with the respondent Prafulla Kumar Mitra be dissolved by a decree of divorce. The petitioner do get Rs. 300/- p. m. as maintenance from the respondent to be paid by the 1st week of each month following for which it is due until she re-marries........" Respondent levied execution of the decree and the same was compromised and payment of the arrears was undertaken to be made in instalments. Prafulla Kumar Mitra executed a Will on March 31, 1965, but made no provision therein for satisfaction of the maintenance decree. He died on April 3. 1965, and the appellant who was the executrix under the Will got it duly probated.
(3.) There is no dispute that the executrix paid the maintenance in December, 1975 for a period after the death of Prafulla Kumar Mitra. But since no payment was made thereafter, respondent levied execution in Matrimonial Case No. 1/77 claiming recovery of arrears of Rupees 19,500/-. Appellant objected to the claim under Section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged, the death of Prafulla Kumar Mitra has extinguished the claim of the purported decree holder. The executing court overruled the objection whereupon the appellant invoked the revisional jurisduction of the High Court. A Division Bench agreed with the executing Court but while dismissing the revision application, granted certificate of appeal to this Court.;