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1951 Supreme(Pat) 101
PATNA HIGH COURT
S.K.Das and Sarjoo Prasad JJ.
Bala Prasad Matani
Versus
Ajodhya Prasad
Appeal From Original Order No. 351 of 1948 ;
Decided On : SEPTEMBER 04, 1951
A mere right to future maintenance is not liable to attachment under Section 60(n) of the Code of Civil Procedure.
Headnote:
MAINTENANCE ALLOWANCE - TRANSFER OF PROPERTY ACT, SECTION 6(DD) - CODE OF CIVIL PROCEDURE, SECTION 60(N) - ATTACHMENT OF MAINTENANCE ALLOWANCE - Whether the maintenance allowance payable to the judgment-debtor by his mother is liable to attachment under Section 60(n) of the Code of Civil Procedure.
Fact of the Case:
The decree-holder obtained a decree against the judgment-debtor and his minor son. The judgment-debtor's mother, Mt. Dhano Kuer, was not a judgment-debtor. The decree-holder sought to attach the maintenance allowance payable by Mt. Dhano Kuer to the judgment-debtor under a deed of gift. Mt. Dhano Kuer objected, claiming that the maintenance allowance was not liable to attachment under Section 60(n) of the Code of Civil Procedure.
Finding of the Court:
The court held that the maintenance allowance payable to the judgment-debtor was not liable to attachment under Section 60(n) of the Code of Civil Procedure. The court found that the maintenance allowance was a mere right to future maintenance and was not a debt which could be attached. The court also held that Mt. Dhano Kuer, who was not a judgment-debtor, had the right to raise the objection that the maintenance allowance was not liable to attachment.
Issues: 1. Whether the maintenance allowance payable to the judgment-debtor by his mother is liable to attachment under Section 60(n) of the Code of Civil Procedure? 2. Whether Mt. Dhano Kuer, who was not a judgment-debtor, had the right to raise the objection that the maintenance allowance was not liable to attachment?
Ratio Decidendi: 1. The court held that the maintenance allowance payable to the judgment-debtor was not liable to attachment under Section 60(n) of the Code of Civil Procedure because it was a mere right to future maintenance and was not a debt which could be attached. 2. The court held that Mt. Dhano Kuer, who was not a judgment-debtor, had the right to raise the objection that the maintenance allowance was not liable to attachment because the decree-holder was seeking to attach the maintenance allowance against her.
Final Decision: The court dismissed the appeal and held that the learned Subordinate Judge was right in refusing to attach the mere right to future maintenance of Ajodhya Prasad.
Das, J.
1. This appeal arises out of an order of the learned Subordinate Judge of Motihari, dated the 10th of April 1948, in Execution Case No. 218 of 1947. The facts are these: The appellant, who is the decree-holder, obtained a decree for Rs. 6,400.00 plus costs, etc., in Money Suit No. 75 of 1934. The decree was obtained on the 8th of January 1946, against Ajodhya Prasad, son of Bhagwan Prasad, deceased, and Sat Narain Prasad, minor son of Ajodhya Prasad, under the guardianship of Mt. Dhano Kuer, his grandmother. The suit was brought against all the three persons mentioned above, but as against Mt. Dhan Kuer, the suit was dismissed. This decree was put in execution Case No. 218 of 1947. Satnarain Prasad was dead by the time, and the decree-holder made a prayer which indicates the mode in which he desired to levy execution. I am quoting below the prayer portion of his execution petition:
"The judgment-debtor has made a wakf of all his property to his mother Mt. Dhano Kuer widow of Bhagwan Prasad deceased, and it has been stipulated in the deed of wakf that the judgment-debtor should be paid a sum of Rs. 125/- a month by way of salary for his expenses, and as covenanted in the deed of wakf, the judgment-debtor has been receiving the salary. That there is no property standing in the name of the judgment-debtor other than this (salary) and the property covered by the deed of wakf. The decree-holder, therefore, prays that this execution petition may be registered and after service of necessary processes, half the salary of the judgment-debtor may be attached, and Mt. Dhano Kuer, widow of Bhagwan Prasad deceased, resident of Purani-godown, Bettiah, tappa Khada, thana Bettiah may be directed to deposit half the salary of the judgment-debtor in this Court every month in any manner deemed proper till satisfaction of the entire decretal amount together with costs and costs of this execution so that the grievances of the decree-holder applicant may be redressed."
2. Apparently, a notice was issued to Mt. Dhano Kuer, who filed an objection under Sec. 47 and Sec. 60 of the Code of Civil Procedure. Her objection, in substance, was that by reason of an award dated the 5th of June 1934, made by certain arbitrators who had been appointed to settle the disputes between Mt. Dhano Kuer and her son Adhya Prasad, the maintenance allowance of Ajodhya Prasad was reduced from Rs. 125/- to Rs. 40.00 and this amount was not liable to attachment under Sec. 60 of the Code of Civil Procedure. On behalf of the decree-holder, it was contended that the award was neither genuine nor effective in law, not having been filed in Court, and that the allowance of Ajodhya Prasad fixed at Rs. 125/- was in the nature of a salary or annuity, and was, therefore, liable to attachment. The learned Subordinate Judge heard the evidence of the parties and came to the following findings: (1) the award dated the 5th of June 1934, was genuine and valid in law; (2) by the said award the maintenance allowance of Ajodhya Prasad was cut down to Rs. 40.00 per month; and (3) this allowance is not liable to attachment under Sec. 60 of the Code of Civil Procedure. The learned Subordinate Judge accordingly allowed the objection and dismissed the execution case. It is against this order of the learned Subordinate Judge that the present appeal is directed.
3. Mr. Prem Lall, appearing on behalf of the decree-holder appellant, has urged the following two points before us. Firstly, he has contended that the allowance payable to Ajodhya Prasad by his mother Mt. Dhano Kuer is in the nature of an annuity or salary, and is not, therefore, hit by Sec. 6 (dd) of the Transfer of Property Act, nor by Sec. 60 (n) of the Code of Civil Procedure. Secondly, he has contended that even if Sec. 60, Code of Civil Procedure, has any application, the only person who can claim the exemption under that section is the judgment-debtor, Ajodhya Prasad and Mt. Dhano Kuer, his mother, who is not a judgment
