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HIGH COURT OF ORISSA
JAGANNADHA DAS,NARASIMHAM, JJ.
Province of Orissa
Versus
G.Venkata Rangamma
M. A. No. 31 of 1947
Decided On : 14-02-1950
MAINTENANCE - ATTACHMENT - APPOINTMENT OF RECEIVER - RIGHT TO FUTURE MAINTENANCE - CHARGE ON PROPERTY - COURT-FEE - CIVIL PROCEDURE CODE, 1908, O. 21, R. 22, O. 33, R. 10, S. 60(1)(n) - TRANSFER OF PROPERTY ACT, 1882, S. 6(dd).
Fact of the Case:
The Government filed an execution application to recover the court-fee payable to them under a decree for future maintenance obtained by a pauper plaintiff against the defendant. The plaintiff's claim for arrears of maintenance was disallowed. The Subordinate Judge held that the right to future maintenance was not attachable under S. 60(1)(n), Civil P.C., and that the appointment of a receiver in execution virtually amounted to an attachment of the decree, which was prohibited by S. 60. The Government appealed.
Finding of the Court:
The Court held that the Government had a first charge on the right to maintenance as decreed with the benefit of the charge in favor of the first judgment-debtor under O. 33, R. 10, Civil P.C. The Court further held that the prohibition against attachment in S. 60(1)(n), Civil P.C., of a future right to maintenance was equally applicable to decrees for maintenance, since the attachment was only preliminary to a sale through Court. However, the Court also held that the remedy by way of appointment of a receiver was available in a case where reliefs by way of attachment and sale were not available.
Issues: 1. Whether the right to future maintenance is attachable under S. 60(1)(n), Civil P.C.? 2. Whether the appointment of a receiver in execution virtually amounts to an attachment of the decree, which is prohibited by S. 60, Civil P.C.? 3. Whether the Government has a first charge on the right to maintenance as decreed with the benefit of the charge in favor of the first judgment-debtor under O. 33, R. 10, Civil P.C.?
Ratio Decidendi: 1. The Court held that the prohibition against attachment in S. 60(1)(n), Civil P.C., of a future right to maintenance was equally applicable to decrees for maintenance, since the attachment was only preliminary to a sale through Court. 2. The Court held that the remedy by way of appointment of a receiver was available in a case where reliefs by way of attachment and sale were not available. 3. The Court held that the Government had a first charge on the right to maintenance as decreed with the benefit of the charge in favor of the first judgment-debtor under O. 33, R. 10, Civil P.C.
Final Decision: The Court modified the order of the Court below and allowed the appeal in part. The Government was held entitled to recover the court-fee payable to them under the decree for future maintenance by way of appointment of a receiver, subject to the safeguards as to leaving adequate provision for the plaintiff judgment-debtor. The Government was also held entitled to attach any arrears of maintenance that may have accrued since the present execution application was filed.
Judgement
JAGANNADHADAS, J. :- The Province of Orissa is the appellant in this appeal. It arises out of an application for execution filed by the Government to recover the costs of a suit in forma pauper is decreed in favour of the plaintiff therein. In T. S. No. 9/15. one G. Venkata Rangamma, filed a suit for enhancement of her maintenance against one G. Gunnamma, the former being the mother-in-law of the latter, who was in possession and enjoyment of her deceased husbands ancestral property. The suit was in forma pauperis. The Court decreed enhanced maintenance at the rate of Rs. 480 per year payable by 15th September of every year commencing from the year 1944-45, the first payment falling due on 15th September 1945, with a charge on the plaint schedule properties for the same. The plaintiffs claim for arrears of maintenance was disallowed. In view of the fact that the plaintiff made an exaggerated claim of Rs. 1200 per year and also for arrears at that rate and since the major portion of the plaintiffs claim was disallowed, the learned Subordinate Judge ordered that the parties shall bear their own costs and also that the court-lees payable to the Government in respect of the pauper-plaint should be recoverable from the plaintiff herself. By execution application No. E. P. 252/46 filed on 21st October 1946 against both the plaintiff and the defendant in the pauper suit, the Government applied for recovery of the amount due to it towards the stamp duty on the plaint namely, Rs. 696-4-0, plus the execution costs. The relief that was asked for in the execution application was in the following terms :
The decree-holder prays that the amounts claimed in cols. 7 and 8 may be realised with subsequent costs by issuing notice under O. 21, R. 22, Civil P.C., and thereafter by attaching the arrears due to the plaintiff-decree-holder under the decree, by appointing a receiver to collect the future maintenance due to the plaintiff under the above decree, under O. 21, R. 53 and O. 21, R. 11, Civil P.C. and the said amount after realisation, may be paid over to the decree-holder Government. The executing decree holder Government submits that an ad interim order of attachment prohibiting the second judgment debtor from making any payment to the plaintiff first judgment-debtor in the above case or to anybody on her behalf may be passed simultaneously with the issue of notice to the judgment-debtor as otherwise the interest of the executing decree-holder may be seriously prejudiced."
2. This execution was contested by the first judgment-debtor (the plaintiff in the pauper-suit) on the ground that the right to maintenance obtained by her under the decree was not attachable. The learned Subordinate Judge by his order dated 15th April 1947 upheld this contention. He held that by virtue of the provisions of S. 60(1)(n), Civil P.C., under which a right to future maintenance is not attachable, the decree obtained by the first judgment debtor against second was not attachable. As regards the prayer for appointment of a receiver he held relying on Secy. of State v. Bai Some, AIR (20) 1933 Bom. 350 : (57 Bom. 607), that the appointment of a receiver in execution virtually amounts to an attachment of the decree which in his view was prohibited by S. 60 and that therefore the relief by way appointment of a receiver could not be granted. As regards the prayer for attachment of arrears of maintenance, he refused the same on the ground that there was no arrears of maintenance granted under the decree. It is against this order of the Subordinate Judge the Government have come up in appeal to this Court.
3. The order of the learned Subordinate Judge is clearly wrong so far as the prayer in respect of the arrears of maintenance is concerned. It is true that under the decree, arrears prior to the date of the suit have been disallowed, but the decree itself as already seated, direct payments of maintenance from the year 1944-45, the first payment falling due on 1
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