Order for stay of proceedings held improper.

The appellant is the first judgment-debtor in execution proceedings taken out by the plaintiff in execution of a maintenance decree she obtained. The decree was against the deceased husband’s joint family, represented by the first defendant, his brother, the second defendant and other family members including the legal representatives of another brother Rudrappa, who died prior to suit.

The decree charged two lots of property, one for maintenance subsequent to suit and the second, B schedule items for arrears of maintenance and provision for pilgrimage, etc. The plaintiff sought in execution to attach some uncharged property in the possession of the first judgment-debtor. The learned Subordinate Judge rejected one of the contentions that the widow should exhaust the charged property first, before resorting to further execution. The view taken by the learned Subordinate Judge is quite correct. It is settled law that a widow cannot be confined to property charged with her maintenance, and that she need not exhaust it all before she can proceed against other property belonging to her husband’s joint family. This has been decided in Srinivasa Iyer v. Lakshmi Ammal1, on which the learned Subordinate Judge has relied.

The contention raised before me, however, is that the learned Subordinate Judge has not gone into the main allegation in the first judgment-debtor’s counter that the decree-holder in collusion with and under the instigation of his brother, the second defendant, was vindictively proceeding against the first judgment-debtor’s property only. My attention has been drawn to the lower Court judgment in which the learned Subordinate Judge referred to a partition deed, Ex.D-1, of the year 1945 as between the three brothers from which he selected lands allotted to each brother and charged them with maintenance of this widow subsequent to suit. He made the following observations in his judgment:

“I have chosen the S.Nos. so that all the defendants may be equally liable to pay the plaintiff’s maintenance.”

It is also urged before me that there are observations in the appellate judgment of this Court, that there was some basis for a suggestion that the widow’s brother was instigated by the second defendant to file the maintenance suit. Mr. Srinivasagopalachari for the respondent-widow is unable to say whether she has ever proceeded against B schedule properties in execution for the arrears of her maintenance. I do not desire to say anything about the merits of the contention that the widow and the second defendant are acting in collusion, as I think this is a case which should be remitted to the executing Court for a finding on the allegation contained in para. 4 of the judgment-debtor’s counter which the learned Subordinate Judge has not considered at all. There is I consider one ground on which a decree-holder can be deprived in any decree which gives concurrent remedies, as in the case of these maintenance decrees of option as to whom he or she should proceed against. If a judgment-debtor can satisfy the executing court that the decree-holder is acting in “mala fide” collusion with one of the other judgment-debtors in execution against him only, the executing Court would be perfectly entitled to refuse execution, in a case such as this, until the charged property has been exhausted. No doubt the first defendant would, if execution proceedings against him resulted in the sale of uncharged property which fell to his share at partition have the right to sue his brothers for reimbursement. But the existence of this right will not justify abuse of execution. What constitutes active “mala fide” collusion is, a difficult matter to define and must depend on the facts of each case. When a serious allegation is made as in the present case, it should be resolved as a finding of fact on the material placed before the executing Court. The Execution petition is remitted to the executing Court for disposal according to law after a findi