Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 506 (KAR)

SUBBAMMA v. B. T. KRISHNAPPA

2000-07-19

H.L.DATTU

body2000
H. L. DATTU, J. ( 1 ) PETITIONER-SMT. Subbamma. w/o B. T. Krishnappa has filed this petition under Article 226 of the Constitution, inter alia questioning the correctness or othenvise of the orders passed by the Principal Civil judge, Family Court, in Ex. No. 3 of 1993 insofar as rejecting the claim of the petitioner. ( 2 ) PETITIONER is the wife of the first respondent-Sri B. T. Krishnappa. Second respondent is first respondent's close relative. The third respondent is the first respondent's sister. Marriage of the petitioner did not last long. She claims that first respondent deserted her. She had approached the Court of the Principal Civil Judge, Bangalore, in Original suit No. 529 of 1974 for recovery of maintenance of Rs. 12,000/- and for future maintenance at Rs. 250/- per month. She had also prayed for a declaration that the alienations made in favour of the second and third defendants by sale and gift respectively by the first defendant are nominal, collusive and fraudulent and in the alternative for declaration that those alienations are ineffective and inoperative as against the right to recover maintenance claimed in the plaint schedule properties during her lifetime and also for securing portion of the properties from defendants 2 and 3. The respondents herein were defendants 1 to 3 before the trial Court. Defendants had filed their written statements and objected to the relief claimed in the suit. Based on the pleadings, the Trial Court had framed five issues for decision. They are as follows:"1. Whether the plaintiff proves that the first defendant was illtreating her and drove her out from the house of the first defendant and deserted and neglected to pay the plaintiffs maintenance? 2. Whether the defendant is liable to pay Rs. 250/- per month for the plaintiffs maintenance and Rs. 1,000/- per annum for her separate residence and garments? 3. Whether the defendant is liable to pay the plaintiff the arrears of maintenance for a period of three years prior to the date of filing the suit amounting to Rs. 12,000/-? 4. Whether the first defendant has made a nominal sale deed of item No. 1 of the plaint schedule properties in favour of defendant 2 and the same is ineffective and is not binding on the plaintiff? 5. 12,000/-? 4. Whether the first defendant has made a nominal sale deed of item No. 1 of the plaint schedule properties in favour of defendant 2 and the same is ineffective and is not binding on the plaintiff? 5. Whether the first defendant has gifted Item No. 2 of the plaint schedule property in favour of the 3rd defendant nominally in order to defraud the plaintiffs maintenance and further the said gift is ineffective and is not binding and inoperative against the plaintiff?" ( 3 ) THE Trial Court after elaborate discussion of the pleadings, oral and documentary evidence of the parties to the Us, was pleased to decree the suit by its judgment and decree dated 23-1-1979. The order made by the Trial Court is as under:"13. In view of the findings recorded above, the plaintiff is found entitled to succeed in the suit and the following order is passed: plaintiffs suit is allowed and plaintiff to recover past maintenance of Rs. 3,600a and current and future maintenance at the rate of Rs. 125/- per month from the date of the suit from the 1st defendant and the right to receive this maintenance is made a charge on the plaint schedule Item Nos. 1 and 2. The prayer for declaration in respect of the alienations in favour of defendants 2 and 3 is rejected. Defendants 1 to 3 to pay costs of this suit to the plaintiff and bear their own. The Court fee payable in the case shall be paid by defendants 1 to 3. Send a copy of the decree to the Deputy commissioner, Bangalore, for effecting recovery of the Court fee payable in the case shall be paid by defendants 1 to 3. Send a copy of the decree to the Deputy Commissioner, Bangalore, for effecting recovery of the Court fee from the defendants". ( 4 ) SINCE the decree was not complied by respondents 1 to 3, petitioner was constrained to file execution petition before the Court which had passed the judgment and decree and the said execution petition thereafter came to be transferred to the Family Court, Bangalore, and there it was renumbered as Execution Petition No. 3 of 1993. The relief sought in the execution petition by the petitioner/decree-holder was for recovery of total sum of Rs. 42,887. 75 ps. from respondents 1 to 3/judgment-debtors by sale of schedule property Item Nos. The relief sought in the execution petition by the petitioner/decree-holder was for recovery of total sum of Rs. 42,887. 75 ps. from respondents 1 to 3/judgment-debtors by sale of schedule property Item Nos. 1 and 2, namely, premises bearing No. 240, situate at Gavipuram Guttahalli, Bangalore and premises bearing No. 10, Gavipuram Hanumanthanagar, Bangalore. The judgment-debtors were served with the notice of the execution petition and for reasons best known to them did not choose to file any objections to the relief claimed in the execution petition. The learned Trial Judge by his order dated 16-10-1993 was pleased to pass an order holding that the major portion of the claim is time-barred under Article 105 of the limitation Act and the petitioner/decree-holder is entitled to recover only three years maintenance and further has observed that since first item of the property was sold by first respondent to the second respondent as early as 12-4-1966, the first item of the property did not belong to the first judgment-debtor on the date on which the decree was passed and as such, the charge created on that property is not valid and therefore, the prayer of the decree-holder for sale of the first item of the schedule property is rejected and insofar as the 2nd item of the schedule property is concerned, the first judgment-debtor has neither asserted that the said property belongs to him nor he contended that it does not belong to him. Therefore, the decree-holder will be entitled to recover the arrears of maintenance only by sale of the second item, if she establishes that it belongs to the first judgment-debtor. It is the correctness or otherwise of this order, which contains strange reasoning, is questioned in this petition by the petitioner being aggrieved by the same. ( 5 ) THE learned Counsels for the parties to the lis are heard. One opposes the reasoning and other tries to justify the peculiar order. In support of their respective contentions, they try to rely upon the observations made by this Court. The case laws on the issues involved in my opinion, are unnecessary. The legal issues involved can be decided on first principles. ( 6 ) THE learned Trial Judge rejects the substantial claim of the decree holder for maintenance as barred by time by pressing into service Article 105 of the Limitation Act. The case laws on the issues involved in my opinion, are unnecessary. The legal issues involved can be decided on first principles. ( 6 ) THE learned Trial Judge rejects the substantial claim of the decree holder for maintenance as barred by time by pressing into service Article 105 of the Limitation Act. While doing so, in his order observes:"article 105 of the Limitation Act, clearly provides the period of three years for recovery of arrears of maintenance by a Hindu. Therefore, the decree-holder should have filed the execution petition for recovery of arrears of maintenance before the expiry of three years from the date of passing the decree. As already pointed out, the decree was passed on 23-1-1979. The execution petition was filed in the month of January 1993. In the execution petition, the decree-holder has claimed Rs. 21,000/- as arrears of maintenance for the period from 23-1-1979 to 11-1-1993. She has further claimed interest on arrears at the rate of 6% amounting to rs. 16,475/ -. She has claimed past maintenance at Rs. 3,600/ -. She has also claimed execution costs and other items. In view of Article 105 of the Limitation Act, the substantial portion of the claim made in the petition is barred by time. As already pointed out, the maintenance is awarded to the decree-holder at the rate of Rs. 125a per month. Therefore, the decree-holder is entitled to claim only the arrears for three years prior to the date of execution petition, is Rs. 4,500/ -. Therefore, she is entitled to claim Rs. 4,500/- towards arrears of maintenance". ( 7 ) ARTICLE 105 of the Limitation Act is applicable only where maintenance is claimed on the basis of the claimant's status as 'hindu' under hindu Law. This Article limits the arrears of maintenance recoverable by a Hindu to a period of three years from the time when the arrears are payable. The gist of the suit for arrears is wrongful withholding. Under this Article, upto a period of three years, the arrears of maintenance so withheld may be claimed and decreed. In sum and substance under this article, a Hindu can maintain a suit for arrears of maintenance to three years. The gist of the suit for arrears is wrongful withholding. Under this Article, upto a period of three years, the arrears of maintenance so withheld may be claimed and decreed. In sum and substance under this article, a Hindu can maintain a suit for arrears of maintenance to three years. To put it differently, the Article 105 relates only to a claim made by a Hindu for arrears of maintenance and this Article limits the arrears of maintenance recoverable by a Hindu to a period of three years from the time when the arrears are payable. ( 8 ) ARTICLE 136 of the Limitation Act provides for the maximum period of limitation for the execution of a decree or order of Civil Court. It is twelve years from the date when the decree or order becomes enforceable, which is usually the date of the decree or order. This Article is a specific Article covering all applications for the execution of decrees or orders, whereas Article 137 is a residuary Article applicable to all applications not specifically provided for. ( 9 ) KEEPING in view this clear distinction between Article 105 and article 136 of the Limitation Act, let me now notice the fact situation in the present case. Petitioner had filed a suit in O. S. No. 529 of 1974 before the Principal Civil Judge, Bangalore, for recovery of maintenance and for future maintenance from respondents 1 to 3. The Trial Court has decreed the suit by its judgment and decree dated 23-1-1979 and it is that decree, which the decree-holder intends to execute and the application can be made only under Article 136 of the Limitation Act. The maximum period of limitation for the execution of that decree shall be twelve years from the date when the decree becomes enforceable. It is time and again said by various authoritative pronouncements of the apex Court that this Article should receive a fair and liberal and not a technical construction, with a view to enable the decree-holder to reap the fruits of the decree and it will not be in consonance with the principles of just interpretation to strain the language of the Article in favour of the judgment-debtor, who had not paid his just dues. Under the decree, the decree-holder acquires a vested right and that right cannot be taken away except under clear and unambiguous enactment. Under the decree, the decree-holder acquires a vested right and that right cannot be taken away except under clear and unambiguous enactment. It would not be desirable to hold a decree to be barred by time unless it is absolutely necessary to do so. In the instant case, learned Trial Judge seems to have confused with the relief sought in the execution petition. The learned Trial Judge seems to be under the impression that by filing the execution petition, petitioner is claiming arrears of maintenance, which in fact is the wrong assumption and in fact what the petitioner/decree-holder was seeking by filing the execution petition is to enforce the decree made by the Trial Court in O. S. No. 529 of 1974, dated 23-1-1979 and not claiming arrears of maintenance. There is essential distinction between a suit for recovery of maintenance and enforcement of decree for maintenance. In the first case, the Law of limitation as envisaged under Article 105 applies and in the second case, Article 136 of the Limitation Act applies. Without keeping in view this basic distinction, the learned Trial Judge has proceeded to hold that the decree-holder is entitled to claim only the arrears for three years prior to the date of execution and this in my view, is not only contrary to the statutory provisions but totally opposed to the basic tenets of the common law. Therefore, the view of the learned Trial Judge cannot be sustained. ( 10 ) NOW let me deal with second reason assigned by the learned Trial judge to reject the request made by petitioner/decree-holder for recovery of maintenance amount by judgment-debtors by sale of schedule properties the learned Trial Judge in the course of his order observes as under:"5. As contended by the learned Counsel for the contesting judgment-debtors, there is no decree against defendants 2 and 3 in the suit. That being so, the L. Rs of second judgment-debtor Munipapaiah and the 3rd judgment-debtor are not liable for the claim made in the execution petition. As already pointed out, the Court rejected the prayer for declaration that the alienation of the suit schedule properties in favour of defendants 2 and 3 was rejected. The learned Counsel for the judgment-debtors produced copy of a judgment passed in H. R. C. No. 2241 of 1984 and other cases. In para 10 of the judgment, it is mentioned that Ex. The learned Counsel for the judgment-debtors produced copy of a judgment passed in H. R. C. No. 2241 of 1984 and other cases. In para 10 of the judgment, it is mentioned that Ex. P. 1 is the registration copy of a sale deed dated 12-4-1966 under which the father of the petitioner Munipapaiah has purchased the petition schedule premises (which is described as Item No. 1 in the schedule ). This shows that as long back as 12-4-1966, the first judgment-debtor b. T. Krishnappa sold the first item of the schedule property to Munipapaiah under a registered sale deed. The Court also rejected the prayer for declaration that the alienation in favour of defendants 2 and 3 was null and void. That being so, the first item of the schedule property did not belong to the first judgment-debtor on the date on which the decree was passed and as such, the charge created on that property is not valid. Therefore, the prayer of the decree-holder for sale of first item of the schedule property is rejected. As regards the second item of the schedule property is concerned, the first judgment-debtor has neither asserted that Item No. 2 belongs to him nor he contended that it does not belong to him. Therefore, the decree-holder will be entitled to recover the arrears of maintenance only by sale of the second item if she establishes that it belongs to the first judgment debtor". ( 11 ) THE process of execution is nothing but enforcement of decrees and orders of Courts by the process of the Court, whereby the party entitled to the benefit of a judgment may obtain that benefit from any person against whom a decree has been passed. It is well-settled law that the function of the Executing Court is to carry into effect the decree of the Trial Court. Its powers are for this purpose, limited to its deciding the questions relating to the execution, discharge or satisfaction of the decree sought to be executed. It has no powers to determine the rights of the parties with regard to all or any of the matters in controversy in the suit. Its powers are for this purpose, limited to its deciding the questions relating to the execution, discharge or satisfaction of the decree sought to be executed. It has no powers to determine the rights of the parties with regard to all or any of the matters in controversy in the suit. It is bound to execute the decree and cannot go behind the decree and the only exception to this rule is that when a decree is passed by a court which has no jurisdiction to pass it, then by reason of inherent defect in the jurisdiction of the Court passing the decree, the Executing court can ignore it, since it is a nullity. A decree is binding and conclusive until it is set aside. The Court executing it cannot ordinarily enter into the enquiry that it was passed without jurisdiction or was not passed according to law. Keeping in view this well-settled principles, let me now notice the reasons assigned by the Executing Court for rejecting the claim of the decree-holder. The learned Trial Judge observes in his order that since the first defendant had alienated Item No. 1 of the schedule property to second defendant as early as 12-4-1966, and therefore, the first item of the schedule property did not belong to first judgment-debtor on the date on which the decree was passed and as such, the charge created on that property is not valid. This reasoning of the learned Judge, in my opinion, is without understanding the judgment and decree passed by the Court in the original suit. The learned Trial judge in the original suit had specifically considered this issue and thereafter, had positively observed that though the schedule properties have been alienated much earlier to the suit, charge can still be created on the properties as was done in the case of Banda Manikyam v Banda venkayamma and Others. The judgment and decree of the Trial Court has become final. In spite of this, the Executing Court has tried to determine the rights of the parties with regard to matters in controversy in the suit. This in my opinion, is impermissible. Therefore, it is difficult to sustain the reasoning of the Executing Court on the second issue. ( 12 ) IN the result, petition deserves to be allowed. Accordingly, it is allowed. Rule made absolute. The order passed by Executing Court in ex. This in my opinion, is impermissible. Therefore, it is difficult to sustain the reasoning of the Executing Court on the second issue. ( 12 ) IN the result, petition deserves to be allowed. Accordingly, it is allowed. Rule made absolute. The order passed by Executing Court in ex. No. 3 of 1993, dated 16-10-1993 is set aside. A writ is issued to the executing Court to restore Ex. P. No. 3 of 1993 to its file and pass appropriate orders keeping in view the observations made by this Court in the course of this order. This exercise the Executing Court is directed to comply within two months from the date of receipt of a certified copy of this Court's order. No order as to costs. Ordered accordingly. --- *** --- .