Arrears of maintenance which have fallen due are attachable, while a right to future maintenance is not.

GOPAL RAO EKBOTE, C. J.

( 1 ) THIS appeal has come to us on a reference made by our learned brother , A. V. Krishna Rao, J. by an order of reference dated 29-8-1973. The learned Judge has given the facts of the case and we don not desire to repeat them here. The learned Judge thought that the decision of Sanjeeva Rao Naidu , J. in Official Receiver Nellore v. China Venkayya , AIR 1960 Andh Pra 353 is opposed to several decisions referred by him. He therefore referred the matter to a Division Bench and that is how it has come before us.

( 2 ) THE question arising from the facts is whether an amount of maintenance decree can be attached by a decree-holder who has obtained a decree against the decree-holder in the maintenance decree. The answer to this question naturally depends upon how we understand clause (n) of the proviso to S. 60 (1) of the Civil Procedure Code. While Section 60 (1) enjoins that the property enumerated in sub-section (1) is liable to attachment and sale is execution of a decree, the proviso says that the particulars mentioned in the proviso shall not be liable to any attachment or sale. Clause (n) of the proviso reads : " (n) a right to future maintenance. "

( 3 ) THE contention based upon these words by the appellant was that a right to future maintenance continues even after the amount of maintenance has become due or is deposited in execution of the maintenance decree. In support of that contention he sought to rely upon the decision of AIR 1960 Andh Pra 353 (supra ).

( 4 ) BEFORE we examine the cases cited to us, we would like to say that under clause , (n) of the proviso to Section 60 (1) , C. P. C. the judgment-debtors right to future maintenance alone cannot be attached in execution of a decree. The reason for that is obvious. As the right to future maintenance is a personal right , it is always considered to be in accordance with public policy that such a right, which is generally created for the maintenance or the personal enjoyment of the grantee, ought to be made not only in alienable but unattachable.

( 5 ) SECTION 6 (dd) of the Transfer of Property Act accordingly states that "a right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred. " That provision is also based on the same principle as stated above. Even for purposes of that provision a right to arrears of maintenance has been considered not to fall within the purview of the said clause.

( 6 ) UNDER Section 60, C. P. C. also a distinction must be made between a right to future maintenance and arrears of maintenance which have become due. While a right to future maintenance is a prospective right to a personal character , arrears of maintenance after they became due , are a debt which has become due and the relationship of the parties changes in regard to such amount and the relationship becomes that of creditor and debtor. Section 60 (1) , clause (n) to the proviso therefore does not prevent the attachment of arrears of maintenance which have fallen due. What follows is that prospective right of maintenance in future is not only inalienable but unattachable. But when some amount in pursuance of such a right becomes due, it becomes attachable because to such a case clause (n) of the proviso would not apply. If this distinction is borne in mind then the case of the decree-holder in the instant case should be considered far better than a case where the amount of maintenance had become due. Because , in the instant case after the amount had become due it was deposited to the credit of the decree-holder in the maintenance of the decree. The moment such amount is deposited in court to the credit of the decree-holder it became the property of the decree-holder and it can, without any objection , be attached by another decree-holder who obtained a decree against such a person. We are fortified in our view by the following decisions.

( 7 ) AS early as in Kasheeshuree Debia v. Greesh Chunder Lahoree, (18

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