Authored By : William Comer Petheram, Henry Thoby Princep,James Quain Pigot, O Kinealy, S.C. Ghose

William Comer Petheram, Kt., C.J., Henry Thoby Princep,James Quain Pigot, O Kinealy and S.C. Ghose, JJ.

1. In this case a reference has been made to the Full Benchby the Chief Justice and Mr. Justice BEVERLEY sitting as a Divisional Bench ofthis Court, in connection with a decree obtained by the respondent, SrimatiLukhimoni Debya, against the appellant, Ashutosh Bannerjee. It appears thatLukhimoni had sued the appellant, Ashutosh, for maintenance. The litigation wascarried up to the High Court, and, on the 4th January 1889, a decree was enteredup by consent in the following terms: "It is ordered and declared byconsent of parties that the decree of the lower Court be, and it hereby is, setaside, and, in lieu thereof, that the defendants Nos. 2 and 3 do pay, out ofthe estate of the late husband of the plaintiff, Rs. 2,000 on account ofmaintenance from September 1882 to December 1885, with interest at the rate of6 per cent per annum from the date of the lower Courts decree until payment;and it is further ordered and decreed, by and with the like consent, that thedefendants Nos. 2 and 3 do pay to the plaintiff, out of the estate of the latehusband of the plaintiff, which is now in their hands, Rs. 50 per month onaccount of her maintenance from 1st January 1886, and onwards, during the life-timeof the said plaintiff."

2. And here it seems proper to point out that apart from thedecision of the question referred to us, there appears on the face of therecord sufficient reasons for upholding the decision of the lower Court. Thedecree was the decree of a Court possessing jurisdiction over thesubject-matter of the suit and was made by consent of parties; and, even if itwere irregular, as the learned Judges of the Division Bench think, still, onthe authority of Pisani v. The Attorney-General for Gibraltar L.R., 5 P.C. 516Sadasiva Pillai v. Ramalinga Plliai L.R. 2 I.A. 219 the appellant in this casehaving consented to the irregularity in the decree, is now precluded fromraising any objection to its execution.

3. Some short time after the decree and in the same year1889, the lady applied for execution and attached certain Immovable propertiesof the judgment-debtor. The judgment-debtor objected, and the executionproceedings seem to have been struck off without any portion of the decree havingbeen realised. No point seems to have been raised in the pleadings or in thedecisions of the lower Courts in this case as to the effect of this order, andwe must hold that it does not affect in any way the reference now before us.

4. On the 19th September 1890, the decree-holder madeanother application for execution. The judgment-debtor objected on the groundthat, so far as the decree awarded future maintenance, it was merelydeclaratory and could not be enforced without a regular suit. This objectionwas overruled by the Subordinate Judge, and against his decision the appellantappealed to this Court. In the grounds of appeal, he set forth the sameobjection which he had raised before the Subordinate Judge, namely, that upon aproper interpretation of the decree, the Court should have found that it wasmerely declaratory and gave no further relief, and, therefore, upon a correctinterpretation of it, the ladys remedy was by a regular suit, not in executionof the decree.

5. The Judges who made this reference say that, in supportof the order of the lower Court, they have been referred to the followingreported cases:Peareenath Brohmo v. Juggessuree 15 W.R. 128 Mansa Debi v. JiwanLal I.L.R. All. 33 Lakshman Ramchandra Joshi v. Satyabhamabai I.L.R. 2 Bom. 494Vishnu Shambhog v. Manjamma I.L.R. 9 Bom. 108 [LQ/BomHC/1884/32] Shinthayee v. Thanakapudayen 4Mad. H.C. 183 Muttia v.Virammal I.L.R. Mad. 283 and they then proceed to say:"In these cases the Courts have held that a decree could be made directingthe payment of maintenance in future, and that such future maintenance could berecovered in execution of that decree, and they have done so on the assumptionthat such a decree is analogous to a decree for money payable byinstalments."

6. From this opinion, however, they dissent, and, in orderto have it finally decided, they have referred for the decision of a Full Benchthe following question, namely, whether "a decree having been madedeclaring a persons right to maintenance at a certain rate, and directing the paymentof such maintenance in future, can the maintenance, when due, be recovered inexecution of that decree without further suit"

7. From the number of cases mentioned by the Judges who madethis reference, it appears that this form of decree has existed for a longtime. The case of Peareenath Brohmo v. Juggessuree 15 W.R. 128 was decided in1871 and in the case of Sinthayee v. Thanakapudayen 4 Mad. H.C. 183 the Judgessaid that it had been the practice of the Courts for many years in thePresidency of Madras to make decrees for the payment of future maintenance toHindu widows either by directing periodical payment of a fixed sum, or bysetting apart a portion of the property and assigning the interest or proceedsthereof to the widow for her maintenance, and, in support of that assertion,the learned Judges referred to a case decided as far back as 1863.

8. The records of our own Court enable us to trace the sameform of decree back to a much earlier date. Thus, in the case of Tohfa Dibia v.Pirthee Chund Rai 3 S.D. (Sel. Rep.) 134 decided by the Sudder Dewany Adalat in1822, no objection seems to have been taken to a decree directing a monthlypayment, and in the case of Hursoondri Goopta v. Nubogobind Sein 6 S.D. 422decided by the Sudder Dewany Adalat on the 21st August 1850, maintenance wasawarded at the rate of Rs. 15 monthly. The same form of decree appears to havebeen followed in the case of Mussummat Beelas Munjaree v. Hursoondree 7 8. D.653 decided on the 17th November 1851. Nor are these the only authorities insupport of the procedure followed by all the High Courts. In the case ofPirthee Singh v. Rani Raj Kooer 12 B.L.R. 238 a decree was passed in 1869 bythe Subordinate Judge of Agra, directing maintenance at Rs. 150 a month, andproviding both for arrears and future maintenance, and this decree was upheldwithout objection by the High Court of the North-Western Provinces in 1870 andby their Lordships of the Privy Council in 1873. A still earlier case is thatof The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. 397 inwhich their Lordships of the Privy Council upheld a decree passed by the HighCourt of Madras in 1864, allowing maintenance at the rate of Rs. 10,000 yearlyto one lady, and Rs. 833-5-4 monthly to another. It seems to us impossible tosay that a form of decree adopted by all the Courts of this country sanctionedby the decisions of their Lordships of the Privy Council, and which has neverbeen successfully attacked, can now be considered irregular. Indeed, so farfrom that being the case, it bears a striking resemblance to the form ofdecrees for maintenance given by Courts of Equity in England. We are unable,therefore, to agree with the learned Judges who made this reference, indissenting from the series of authorities mentioned by them, and referred to inthis judgment.

9. Nor is the second portion of the proposition placedbefore us less free from doubt. Not only do the cases referred to by thelearned Judges show that it has been the universal practice, when relief isdecreed in a suit of this nature, to grant that relief in execution of decreeand not by a new suit, but the very point now referred was decided in the caseof Sinthayee v. Thanakapudayen 4 Mad. H.C. 183. In the present case the mode ofexecution is referred to in Sections 230, Clause (b), and 255 of the Code. Wethink, therefore, that the question referred to the Full Bench must be answeredin the affirmative, and that this appeal should be dismissed with costs.

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Ashutosh Bannerjeevs. Lukhimoni Debya (23.11.1891 -CALHC)