Judgment

RANGANATH MISRA, J. :- This appeal by certificate under Art. 133 of the Constitution seeks to challenge the appellate decree of the Calcutta High Court upholding the dismissal of her suit for declaration that the plaintiff was entitled to a charge on the estate of her deceased husband Captain Majumdar for the payment of permanent alimony of Rs. 350/-. p. m. in terms of the decree dated May 31, 1966. While granting a decree for dissolution of marriage the Court had directed that the plaintiff would get permanent alimony and maintenance of Rs. 350/-. p. m. from the date of the decree till her death or her remarriage or any other act which would disentitle her from getting the amount. Maintenance was paid up to October 1972 by the husband who was a pilot in the Indian Airlines. He died on December 18, 1972. leaving behind inter alia. an asset of Rs. 2,00.916.00 lying to his credit with his employer. The plaintiff instituted Title Suit No 1582/74 for creation of a charge and also asked for recovery of Rs. 8,750/- claimed to be due as outstanding maintenance until the date of the suit and for an injunction against withdrawal of the money lying with the Indian Airlines until adequate arrangement was made for payment of alimony to her. The claim was contested by the ex-employer (defendant 1) and two ladies impleaded as defendants 2 and 3 on the disclosure by the defendant 1 that they were the wives of late Capt. Majumdar. Resistance was mainly on two grounds : (1) that the order for payment of alimonly lapsed with the death of the husband: and (2) that a separate suit for this claim was not maintainable in view of Section 47 of the Code of Civil Procedure.

2. The trial Court took the view that there was no substance in the plea of bar of a separate suit. But as the order for payment of alimony in its view had terminated with the husbands death, the plaintiff could recover only a sum of Rs. 700/- being the dues for two months prior to the death of the husband.

3. The Plaintiffs appeal and a separate Civil Revision involving the common question about the sustainability of the order for payment of alimony beyond the husbands death came to be disposed of by a common judgment by a Division Bench of the High Court. The Court held that the death of the husband did not affect the order for payment of alimony and the same could be recovered from his estate in the hands of the heirs and successors, The Court further held that an independent suit was barred and the plaintiff was not, therefore. entitled to the reliefs claimed. The High Court granted leave to appeal to this Court in both the matters. In the connected Appeal being Civil Appeal No. 1997 of 1980: (Reported in AIR 1983 SC 916) (Mrs. Aruna Basu Mullick v. Mrs. Dorothea Mitra), this Court has already upheld the view of the High Court that a decree for permanent alimony is not extinguished with the death of the husband and the estate is liable to be proceeded against in the hands of the heirs for the satisfaction of the decree.

4. This appeal was taken up separately as in course of hearing terms of settlement were mooted. We indicated to the counsel for the respondents that even if there be some force in the plea that a separate suit did not lie (though the argument advanced by Mr. Govindan Nair for the appellant in support of the stand that a separate suit for the reliefs claimed lay was forceful), the suit could as a measure of ex debito justitiae be treated as an execution petition. There is good authority for converting an execution application into a suit and there could in our opinion be no valid objection to the counter-process of converting a suit into an execution proceeding particularly when an ill-advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. Respondents, counsel has also fairly conceded this position. We direct that the suit be treated as an execution application. That being done, there is no