An amendment to a provision of the Civil Procedure Code relating to procedure in execution of a decree is retrospective and applicable to pending proceedings unless there is a contrary intention expressly or clearly implied.

ALLADI KUPPUSWAMI, J.

( 1 ) THIS appeal is directed against the judgment of Muktadar, j. dismissing the Appeal No. 282 of 1976 filed against the order of the Ist Additional Judge, City Civil Court, Hyderabad allowing E. P. 4/75 in O. S. 507/70 on the file of that Court.

( 2 ) THE respondents herein, who are the wife and daughter of the appellants, filed that suit for recovery of maintenance and for other reliefs against the appellants and obtained a decree. The Court below awarded maintenance to the first respondent at Rs. 100. 00 per month and to the 2nd respondent at Rs. 75. 00 per month until she is married. The appellants also was directed to pay Rs. 5,000. 00 to the first respondent for the marriage expenses of the 2nd respondent. Items 1 to 3 of the plaint second schedule were to stand charged for the payment of the decree amount.

( 3 ) ALLEGING that the appellants was in possession and ownership of about 18 1/2 acres of land from which he was deriving a substantial income of nearly Rs. 3,500. 00; that he was also a Head Constable earning the salary of Rs. 300. 00 per month and that in spite of the fact that he had the means to pay the decree amount, he was not doing so, the first respondent filed the execution petition, praying for the arrest of the appellants. The appellants resisted the application stating that he was only getting Rs. 600. 00 per year as income from the land and only Rs. 200. 00 per month as an employee in the Excise Department and he had a father, a widowed sister and her son to maintain. Therefore, it could not be said that he had means to pay the decree amount and he was wilfully evading payment. The Court below did not accept the defendants case and found that he was getting a salary of Rs. 300. 00 per month and a net income of Rs. 3,500. 00 per year from the lands. As he did not pay the decretal amount or a substantial portion thereof, the Court below ordered the arrest of the appellants.

( 4 ) THE appellants preferred C. M. A. 282/76 against the said order. Muktadar, J. agreed with the finding of the Court below that the appellants was getting a net income of about Rs. 3,500. 00 from his lands and a salary of Rs. 300. 00 per month as a Head Constable. He also agreed that there was no evidence to show that he was maintaining his father or the widowed sister apart from the fact that he was not bound to maintain her. He therefore affirmed the judgment of the lower Court and dismissed the appeal. The judgment-debtors has preferred this appeal against the judgment of Muktadar, J.

( 5 ) SRI Jagannadha Sastry, the learned counsel for the appellants, contended that no case was made out for directing the arrest of the appellants. He submitted that a charge was created in respect of all the properties belonging to the appellants for the payment of the decretal amount and in those circumstances he was not in a position to sell the properties. The property did not yield more than Rs. 600. 00 per year as income. Further, subsequent to the order of the lower Court, departmental action was taken against him and he was placed under suspension and he is therefore being paid only a fraction of his salary as subsistence allowance. The appellants had made an offer in the lower Court itself that the petitioner may take possession of 3 acres and odd of the land and cultivate it herself and derive income therefrom and adjust the income towards the maintenance due to her and the daughter. During the course of the arguments Jagannadha Sastry went further and said that his client was willing to put the 1st respondent in possession not only of the 3 acres of land but of the entire land and the respondents may appropriate the income derived from the land towards the maintenance due to them. He submitted that the application was not bona fide and was made with a view to harass and coerce the appellant. The proper remedy for the respondents was to proceed against the charged properties, bring them to sale and adjust the sale

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