Mullick, J.[His Lordship recited facts and proceeded]:

The first objection taken is that the decree as it stands cannot be executed. It is contended that the decree is a mortgage-decree and, as the properties charged have already been exhausted, the only remedy open to the decree-holder is to take out an order under Rule 6 of Order 34. It is contended that the decree, being a mortgage decree, it cannot be executed as a personal decree against the judgment-debtor. Now it is quite clear on the authority of Ashutosh Banerjee v. Lukhimoni Debya (1892) 19 Cal. 139 that it is not necessary for the decree-holder to bring a fresh suit for maintenance. In the decree of the 8th March, 1911, there was not merely a declaration of the right to maintenance but also a direction that the arrears of maintenance payable at certain dates were to be realized from the judgment-debtors and the Court decided that the arrears were to be charged upon certain properties. Now that; was a decree enuring for the duration of the decree-holders life and it is open to her to execute her present claim for arrears of maintenance without bringing a fresh suit.

2. As for the contention that, being a mortgage-decree it cannot be executed as a simple money decree, the argument proceeds on a fallacy. The decree is clearly not a mortgage decree. The mode of execution is partially that provided for the execution of mortgage decrees, but the charge in this case was a lien not antecedent to the decree but created by the decree itself and therefore it cannot be said that there was any mortgage on the property or that the decree is a true mortgage decree. In my opinion, the decree-holder can, at any time after the mortgage properties are exhausted, proceed to execute the decree against the properties which belonged to her husband and are in the possession of the judgment-debtor. In effect an application, under Order 34, Rule 6, would not be materially different from the application which has been made in the present case. In either event the decree-holder would be entitled to proceed against the other properties of the judgment-debtors, provided those properties belonged to the estate of her deceased husband. The difference between the maintenance right of a Hindu widow and a mortgage charge has been recognized in Section 39 of the Transfer of Property Act and ordinarily it is enforceable like any other liability in respect of which no charge exists. A Court may decree that the liability shall be enforced as a charge but, in my opinion, the law does not say the procedure of the execution of the decree is limited to the provision of Order 34. Therefore the objection that the execution cannot proceed is, in my opinion, untenable.

3. Then comes the question as to the merits. Now, with regard to Sia Shachari, it is established that she is in possession of a 7-annas 2-gandas share of mauza Keotgavan which share was the property of Rajballav. It is true that this property was not included in the properties specified in the decree of the 8th March, 1911, as being liable to the decree-holders charge; but as under the Hindu Law a widow is entitled to proceed against all the properties of her deceased husband, to recover her maintenance allowance, there can be no objection to the order which has been made in this case. The result is that the judgment of the learned Additional District Judge is arrirmed and appeal No. 170 of 1922 is dismissed wich costs.

Bucknill, J.

4. I agree.