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Mt. Tulsha Devi vs Shah Chironju Lal And Ors.

High Court Of Judicature at Allahabad|18 August, 1942


JUDGMENT Iqbal Ahmad, C.J.
1. This is a judgment-debtor's appeal and arises under the following circumstances : The judgment-debtor appellant is a widow of the family of the respondents. There was a partition amongst the male members of the family of the. respondents sometime back and, in order to provide for the maintenance of the appellant, a village called Bijauli was given to her for her lifetime. It was farther agreed that the respondents will defray the expenses of the marriage of the daughters of the appellant. The respondents, however, committed a breach of this agreement and did not meet the expenses of the marriage of the daughters of the appellant. The appellant then brought a suit against the respondents for Rs. 18,000 on account of the expenses of her daughters' marriage and a decree for Rs. 7000 was passed in her favour by the trial Court. The respondents deposited the decretal amount in the Court below and filed an appeal in this Court. During the pendency of the appeal in this Court, a considerable portion of the amount deposited by the respondents was taken away by the creditors of the appellant. The High Court allowed the appeal of the respondents in part and reduced the decretal amount by a sum of Rs. 2200.
2. After the decree of. the High Court, the respondents applied for restitution under Section 144 and the Court below made a decree in their favour for a sum of Rs. 1023. A portion of this decretal amount had been realized by the respondents, but still a sum of about Rs. 700 is alleged to be due to them. For the realization of this amount the respondents applied to the execution Court for the appointment of a receiver of village Bijauli. The appellant objected to the appointment of a receiver. The execution Court, however, overruled the objection of the appellant on the ground that "the objector has not been able to show any law under which the appointment of a receiver can be disallowed." It is against the order of the Court below disallowing the objection of the appellant that the present appeal has been preferred.
3. The appeal came for hearing before two of the Judges constituting the present Bench and the learned Counsel for the appellant then placed reliance on the Full Bench decision of this Court in Ram Swarup v. Anandi Lal ('36) 23 A. I. R. 1936 All 495 and on an unreported decision of this Court in B. Keshri Chand v. Mt. Mehri Kuer E. F. A. No. 119 of 1937. Both these decisions support the contention of the appellant that in the circumstances of the present case the Court below had no jurisdiction to appoint a receiver of the appellant's property. The Bench hearing the appeal, however, entertained considerable doubt about the accuracy of the decisions and accordingly referred the lease to the present Full Bench. The answer to the question whether Clause (2) of Rule 1 of Order 40 has application only to properties in the possession of third parties or is also applicable to properties in the possession of one of the parties to the litigation, is beset with considerable difficulty and there is considerable divergence of judicial opinion on the point. We consider it advisable under those circumstances that, in order to set the doubt at rest so far as this Court and the Courts subordinate to this Court are con-corned, the rule should be so amended as not to leave any doubt as to the true interpretation of Clause (2) of Rule 1, of Order 40, Civil P. C. In the present case, however, in the view that we take it is not necessary for us to enter into a discussion of the question whether the cases quoted above were or wore not correctly decided. The facts of the present case are such as to render it undesirable at the present stage to justify the drastic step of dispossessing the judgment-debtor-appellant from the property of which she is in possession in lieu of maintenance. If, however, she persists in making default land does not pay the decretal amount in due course it will have to be seriously considered whether or not a receiver of her property should be appointed. As we have stated before, a portion of the decretal amount has already been realized by the respondents and only a sum of about Rs. 700 remains due. In her objections the judgment-debtor appellant stated that if in the opinion of the Hon'ble Court it is held that the decretal amount should be realized from the profits of the applicant, six monthly instalments in respect thereof may be fixed extending over a period of at least four years, so that the applicant may be able to pay the decretal amount conveniently and may also be able to maintain herself.
4. We consider that in the circumstances of the present case this prayer of the applicant was reasonable and should have been granted. We accordingly allow this appeal to this extent that we set aside the order about the appointment of a receiver and in lieu thereof substitute the following order: The appellant shall be called upon to pay every six months a sum of Rs. 100 to the respondents decree-holders till the decretal amount is satisfied in full. The first instalment will be payable on 30th November 1942. If the appellant makes default in payment of the said amount every six months the decree-holders will be entitled to apply afresh for the execution of the decree. It would be open in that event to the decree-holders to apply for execution by the appointment of a receiver of the appellants' property. If such an application is made it will be considered and decided on its merits by the Court below. In the circumstances of the present case we direct the parties to bear their own costs of this Court and of the Court below. As to what is the amount due to the decree-holders from the judgment-debtor appellant is a question that will be gone into by the Court below.
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Mt. Tulsha Devi vs Shah Chironju Lal And Ors.


High Court Of Judicature at Allahabad

18 August, 1942