Wanchoo, C. J. - (1.) THESE are two connected cases by Daulatsingh (31) and Himmatsingh (35) under Art. 226 of the Constitution praying for the issue of the writ in the nature of mandamus or prohibition or any other writ or direction or order restraining the opposite party namely, the Collector, in one case of Nagour, and in the other case of Pali, from executing the order of maintenance passed in favour of majis of the thikana of which the applicants are Jagirdars.
(2.) THE case of Daulatsingh is that the Mahakma Khas of the former State of Jodhpur fixed a maintenance allowance of Rs. 57/- per month for the maji in October, 1945. In March, 1953, an application for recovery of arrears of maintenance amounting to Rs. 855/- was made, and the Collector of Nagaur passed an order directing the Tehsil-dar to attach thikana property with a view to realize these arrears. THE Tehsildar thereupon attached certain movable property belonging to the thikana. THE present application was made in May, 1953, and the main contention of the applicant in this case is that there is no power in the Collector to execute the order of the 1st October, 1945, by attachment of the property of the thikana. In the next application, Himmatsingh has raised the same pleas as Daulatsingh. He has, however, further contended that there was no law empowering the Chief Minister of the former State of Jodhpur to pass an order of maintenance which was for an amount of Rs. 125/- per month in this case, and that was an added reason why the Collector had no authority to recover the amount of arrears under the Public Demands Recovery Act under which the Collector was proceeding to do so. The applications have been opposed on behalf of the majis and also by the State. It is not denied on their behalf that the arrears of maintenance could not be a public demand within the meaning of the Public Demands Recovery Act, and could not, therefore, be recovered under the Marwar Law relating to recovery of public demands, or the Rajasthan Act (No. V) of 1955. It is contended, however, on behalf of the majis that the case is governed by the Rules regulating maintenance allowance to ladies of the Jagirdars. These rules do not specify whether the order granting the allowance is to be treated as a decree of the civil court or of the revenue court. The contention on behalf of the maji of Khudala is that the order must be held to be executable and an implied condition be read in the relevant rules empowering the Chief Minister to execute the order on the executive side. The first question, that may be considered, is the power of the Chief Minister to pass such an order of maintenance. We find that certain rules governing the disposal of applications relating to claims for maintenance by ladies against jagirdars were promulgated by order of His Highness the Maharaja Sahib Bahadur of the former State of Jodhpur and published in the Jodhpur Government Gazette, dated 1st of May, 1937. These rules obviously had the authority of law, and were in so many words stated to have been passed into law by His Highness Rule 5 of these Rules provides that a lady belonging to the family of a Jagirdar may, either during the pendency or before the institution of a civil suit for maintenance, apply to the Chief Minister (Political), that for reasons of the lady's pecuniary limitations, or the unusual delay of the courts, or for any other sufficient reason, her claim for maintenance may be dealt with on the executive side. Then follow certain procedural provisions which need not be set out in detail. By rule 8 the Chief Minister was given the power to dispose of such an application for maintenance himself or grant a certificate directing the applicant to go to the civil court. Rule 9 provides for appeal to the Ijlas-i-Khas from the order of the Chief Minister. These provisions make it clear that the intention was to provide an alternative and possibly speedier and cheaper remedy for fixing of maintenance allowance of ladies of the families of jagirdars, though the right to file a suit in the civil court still remained subject to the restrictions provided in these rules. It has not been seriously disputed that the orders of maintenance in favour of the two Majis in these cases were passed under these provisions. Nor can it be seriously disputed that the orders, when they were passed, were valid under this law. The next question is about the execution of these orders. Unfortunately, the rules do not provide how these orders would be executed. But the intention that these orders would be carried out and the Jagirdars would pay the maintenance allowance fixed by the Chief Minister is obvious. It may be that the provisions as to execution were left out by inadvertence, or it may be that it was thought that the powers of the Ruler of Jodhpur over the Jagirdars were ample enough to see that these orders would be obeyed. Whatever may be the reason for the omission, the fact remains that there was no specific provision for the execution of these maintenance orders. Whether these orders can now be executed in any manner whatsoever is a matter about which we need not express any opinion. But the specific point, which is raised before us in these two application is, whether such order can be executed in the manner in which they are being executed now under the Public Demands Recovery Act. To that the answer is simple, and it is not in dispute that there orders cannot be executed either under the Marwar Public Demands Recovery Ordinance. 1923, or under the Rajasthan Public Demands Recovery Act (No. V) of 1955 'public Demand' has been defined under the Marwar Ordinance as any money payable to the Darbar, and as these allowances are not payable to the Darbars, they cannot be recovered under that Ordinance. The Rajasthan Act provides a schedule which gives what moneys can be recovered as public demands and it is not in dispute that these arrears as maintenance do not come under any of the items in the schedule of the Act. The action,therefore, of the two Collectors in realizing these amounts under the Public Demands Recovery Ordinance or Act is entirely unjustified, any they are acting beyond their jurisdiction in taking steps under these provisions of the law for realizing these moneys. We are, therefore, of opinion that these applications must be allowed, and the Collectors and Tehsildars concerned prohibited from realizing the moneys in the manner in which they are doing so. Before we finally part with the case, we should like to point out that there may be some difficulty in executing orders passed under the rules of 1947, and the Government may well consider whether some legislation should not be brought forward for executing such order passed before the 26th of January, 1950. We, therefore, allow the applications and prohibit the Collectors of Nagaur and Pali from realizing the moneys in respect of maintenance allowance to the majis of Thikana Karlu and Khudala in the manner in which they are doing at present. In view of the circumstance of these cases, we order parties to bear their own costs. . ;