Desai, C.J. - (1.) THIS is a judgment debtor's appeal from an order dismissing his objection under Section 47, Code of Civil Procedure against the execution of a decree obtained against him. The facts, which are not in controversy, are as under. In 1952 the Respondent filed a suit against the Appellant and his predecessor -in -interest Bhagirath Dass for a decree of declaration of a charge on the property in dispute. She stated in the plaint that Bhagirath Dass; who was her deceased husband's brother, had by an agreement agreed to pay her maintenance allowance at Rs. 540 per annum, that there was no charge created on any property for payment of this amount as there was large property possessed by him, that after the abolition of zamindari it might not be possible for her to realise the maintenance from him and consequently desired to have a charge created on some property and was entitled to have it crated, that the cause of action accrued to her on his refusal to create a charge and that she was entitled to a decree declaring that the property in dispute was charged with the payment of maintenance allowance of Rs. 540 per annum. It should be made clear that neither did she ask for a decree for fixation of maintenance allowance, not did she ask for maintenance for any month; she simply asked for a declaration of a charge for the maintenance allowance already fixed by the agreement. The suit was contested by Bhagirath Dass, who contended that the amount of maintenance allowance should be reduced. The Respondent replied that the amount of maintenance could not be reduced in the suit. While the suit was pending Bhagirath Dass sold the property in dispute to the Appellant, who also appeared in the suit and claimed that no charge could be created because he was a bonafide purchaser for consideration without notice. The trial court framed issues relating to the liability of the property to be made the subject matter of a charge and its jurisdiction to reduce the maintenance allowance. It held that the charge could be created both against Bhagirath Das and the Appellant. Coming to the question whether it had jurisdiction to reduce the maintenance allowance it held that it could not be reduced in this suit and added that there was also no justification for reducing it. It passed the decree in the following words: Wadi ke nan nafqe ka charge babat mubligh 540 rupya salana jaedad number 1 munderja tahat arzi dawa par qaim kiya jata hai aur waad muddaiya is had tak ma(sic) kul kharcha degree kiya jaia hai. It appears that the Appellant and Bhagirath Dass did not pay the maintenance allowance and on 9 -5 -1957 the Respondent applied for recovery of Rs. 2,827 and odd through execution of the abovementioned decree by sale of the property in dispute. The execution application was contested by the Appellant not only on the ground that his property was not liable but also on the ground that the decree was incapable of execution, being only a declaratory decree. His objection having been repelled by the courts below he has come up to this Court in second appeal. The second appeal came up for hearing before V.D. Bhargava, J. who has referred it to a Bench because he considered that an important question of law was involved in it.
(2.) THE facts that we have stated leave no room for doubt that the decree passed in favour of the Respondent is a simple declaratory decree incapable of execution. The decree has simply created a charge; neither was there any enquiry into the title of the Respondent to the maintenance nor did the decree provide either expressly or impliedly for the payment of any money by the Appellant or Bhagirath Dass to the Respondent. The Respondent herself never claimed that there should be any enquiry into her title to the maintenance or into the amount of maintenance to which she was entitled. She disputed the jurisdiction of the court to reduce the amount of maintenance fixed under the agreement and the court accepting her contention held that it could not go into the question whether she was entitled to the maintenance fixed under the agreement or not. The suit was drafted in such a way as to prevent such an enquiry; all that she sought was the creation of a charge for whatever amount of maintenance was fixed under the agreement. The cause of action arose to her simply because the agreement did not create a charge. If the agreement had created a charge she would not have filed the suit at all. Therefore, the decree that was passed simply placed her in the position in which she would have been if the charge had been created under the agreement itself. It can not be disputed for a moment that if the agreement had created a charge the Respondent could not enforce the agreement in execution and would have been under the necessity of filing a suit to enforce the agreement. Unless she obtained a decree on the basis of the agreement she could not recover anything from the Appellant or Bhagirath Dass. Merely because the agreement failed to create a charge and she got the failure remedied through the decree she cannot be in a better position. Merely because she got some kind of a decree she is not entitled to recover money from the Appellant and Bhagirath Dass by proceeding against the property charged. Reliance was placed on behalf of the Respondent upon a decision of this Court in Mahesh Prasad v. Mundar 1951 ALJ 39. The facts of that case were however essentially different; the decree there was in these terms: The decree be and is hereby passed in favour of the Plaintiff Appellant for recovery of the maintenance allowance at the rate of Rs. 20 a month from the date of the institution of the suit. It is hereby declared that such a maintenance allowance shall be a charge on the property of the family." The decree expressly provided for payment of maintenance allowance by the Defendant to the Plaintiff at a certain rate for all time to come; it was a decree for payment for every month in the future. It also created a charge on certain property. Clearly it was an executable decree; if the Defendant judgment debtor did not pay the maintenance allowance in any month it was in breach of the decree which directed him to pay it and the Plaintiff decree holder was entitled to apply in execution of the decree. She could not be called upon to file a suit for maintenance allowance of that particular month because in such a suit she could not get anything more than what she had already got. The decree in that case being essentially, we do not know what assistance can be had from the decision of that case. The question whether the decree such as was passed in the instant case can be executed at all or not, did not arise in that case and could not have been decided in it. However certain observations of Agarwala, J. support the contention of the Respondent, but with great respect we may say that they are obiter dicta. Also we notice that no other Judge concurred in them. Malik, C.J. delivered another, though concurring judgment and Wali Ullah, Wanchoo and Seth, JJ. agreed with it. Some reliance was placed also upon the following observations of Malik, C.J. on page 46: I do not think these (referring to Order 34, Rules 14(1) and 15) rules help the Appellant. Where there is a mortgage or a charge created previous to the date of the decree a suit on the mortgage or that charge has to be brought if the mortgagee or the chargeholder wants to proceed against the property over which the mortgage or the charge has been created. Where, however, a charge is created by the decree itself these provisions do not seem to be applicable. The learned Chief Justice obviously contemplated a decree which not only directed payment by the Defendant to the Plaintiff but also created a charge. The emphatic word "itself" in the clause "a charge is created by the decree itself," suggests that a charge is created by the decree by which some other direction is given and the other direction can only be payment of maintenance allowance. In Manmohan Das v. Bahauddin, 1957 AWR (HC) 719 our brother Bhargava observed that where, the decree of a court simply declares an allowance to be a charge on the property, but does not direct the sale of it in enforcement of that claim, it is a declaratory decree for the enforcement of which a suit will have to be instituted and is not a decree capable of execution by itself. This observation supports the view that we take.
(3.) IT is not for us to enquire why the Respondent sought this kind of a decree; it suffices that she cannot proceed in execution of it. If she wants to proceed against the property to recover the arrears of maintenance allowance, she must obtain a decree for payment of the arrears to her by Bhagirath Dass and the Appellant and for sale of the property in dispute in default. She cannot ask for the sale of the property in dispute straightaway in the absence of such a decree.;