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2004 DIGILAW 407 (MAD)

K. Durai Thiruvaukkarasau v. Devathal and others

2004-03-10

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2004
ORDER: Though the respondents 1 to 3 and 5 were served, they have not appeared to contest this revision. As far as the fourth respondent is concerned, the petitioner has given up for the said respondent and necessary endorsement has also been made by the learned counsel for the petitioner. 2. An interesting question has cropped up in this revision, namely, as to when the wife along with her minor child, who had obtained a decree for maintenance as against her husband as well as the father-in-law, subsequently, joins with the husband and lives in matrimonial home, be-getting another child through him, could it be held that irrespective of the said subsequent re-union of the wife along with the child with the husband, the decree obtained by her would survive for enforcement. 3. In the case on hand, the first and second respondents stated to have obtained a decree for maintenance as against the third respondent and his father as early as on 15.12.1986. Pursuant to the said decree, an execution Petition came to be filed in E.P.No.147 of 1990, in which the respondents 1 and 2 appeared to have obtained an order of attachment in respect of two items of properties, with reference to which, the petitioner filed a claim petition in E.A.No.308 of 1991. When the properties were brought to sale, the petitioner who is stated to have purchased both the items of the properties, came forward with the present claim petition in E.A.No.308 of 1991 for an order that these two items of properties covered by the order of attachment in E.P.No.147 of 1990 should be freed from such attachment and also to be declared that they absolutely belong to the petitioner. 4. It is relevant to state that while the Executing Court ordered the claim petition in so far as it relates to the first lot of property, rejected the claim of the petitioner in regard to the second lot on the footing that the said lot came to be sold by the third respondent along with his father to one Mayavan on 22.11.1989, from whom the petitioner purchased the property by sale deed dated 2.3.1990, which are subsequent to the decree dated 15.12.1986 in O.S.No.459 of 1984. The appellate Court also confirmed the said order of the Execution Court in C.M.A.No.2 of 1996 in its order dated 16.9.1998. 5. The appellate Court also confirmed the said order of the Execution Court in C.M.A.No.2 of 1996 in its order dated 16.9.1998. 5. It is also relevant to state at this juncture, that both the Execution Court as well as the appellate Court have held in common, that by virtue of Exs.P-5 to P-9, it was established by the petitioner beyond doubt that respondents 1 to 3 were living together after the decree dated 15.12.1986. When Ex.P-6 was thus considered by both the Courts and accepted, it will have to be noted that the said exhibit establishing a very relevant factor, viz., subsequent to the reunion of respondent 1 with the third respondent, one other girl child was born, which is evident by the birth certificate issued on 24.4.1988. 6. The above conclusions of the Courts below based on the concrete documentary evidence establishing the fact about the re-union of respondents 1 and 2 with the third respondent, only go to show that the very basis of the claim of respondents 1 and 2 for maintenance as against the third respondent and his father, no longer survives. In other words, by virtue of the establishment of the above factors of the re-union of respondents 1 and 2 with the third respondent, the very basis of the decree granted in O.S.No.459 of 1984 ceases to exist and as a sequel to it, the very decree should be held to have lost its value for enforcement. 7. In fact, the learned counsel for the petitioner relied upon the Division Bench judgment of this Court in Vasantam Venkaayya v. Vasantam Raghavamma, (1941)2 M.L.J. 263 : A.I.R.1942 Mad. 1: I.L.R. (1942) Mad, 24, wherein His Lordship Justice Leach in his usual inimitable language has stated the legal position in a most lucid manner which is to the following effect: "The respondent mainly relies on the provisions of the Civil Procedure Code. She points to the fact that under that Code a decree remains in force unless it has been satisfied or adjusted and the satisfaction or the adjustment has been recorded. The present case is not concerned with a manner of procedure or the adjustment or satisfaction of a decree. The question is whether the Court is to disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished. The present case is not concerned with a manner of procedure or the adjustment or satisfaction of a decree. The question is whether the Court is to disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished. By returning to her husband the respondent became disentitled to claim maintenance against him. The decree which she had obtained must, it seems to me, be regarded in the circumstances as having become ineffective. By going back to her husband the wife restores the position to what it has when they were married. It seems to me that the rule stated in Haddon v. Haddon, (1887)18 Q.B. 778, must be given effect to her if justice is to be alone. For these reasons I would allow the appeal and dismiss the application for execution. This will not prevent the respondent from obtaining a fresh decree if she left her husband on the second occasion as the result of his ill treatment of her, but this is not question which can be considered in this case. There will be no order as to costs here or below." [Emphasis added] 8. In fact, while rendering the above said principle, the Division Bench was pleased to follow various English decisions of single Judges as well as that of Division Benches. In fact, a contention was raised that the English decisions might have no application because of the special feature, namely, that the Indian Divorce Act cannot apply to them and that Hindu wife was not entitled to sue for a judicial separation. Learned Justice Leach, repelled the said contention also by stating as under: "It is true that the Indian Divorce Act does not apply to the parties and that Hindu wife may not sue for a decree for judicial separation, but she can sue for a decree requiring her husband to maintain her if she is compelled to live apart. A decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separations. There being no difference in principle I can see no reason why the English authorities should not be applied." 9. A decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separations. There being no difference in principle I can see no reason why the English authorities should not be applied." 9. This principle has also been followed in the subsequent decision of this Court by His Lordship Mr.Justice Yahya Ali (as he then was) in Kuppuswami Padayachi v. Jagadambal, (1947)1 M.L.J. 34 : A.I.R. 1947 Mad. 423. 10. In the case on hand, though the principle is sought to be applied at the instance of the third party purchaser, I am of the view that the said principle can still be applied in all fours. What has been stated with reference to the right of the wife, after obtaining decree for maintenance who subsequently got reunited with her husband was found to be ineligible to execute the decree, by virtue of the factum of such re-union, it should be held that the said legal consequence relating to the inexecutability of the decree as between the wife and the husband would be equally available to the subsequent purchaser as well. If the decree is inexecutable by virtue of the factum of re-union of the wife with the husband subsequent to the decree and when that factor exists, as has been found by the Courts below, it will have to be held the said factor will work in favour of all concerned with reference to the executability of the decree, which became inexecutable by virtue of the fact that the very basis of the grant of the decree cease to exist by virtue of the re-union of the wife with the third respondent. Therefore, merely because the claim petition was filed by the third party purchaser, it cannot be held that the decree which became non-est by virtue of the factum of re-union of the wife with her husband subsequent to the decree, would continue to remain in force in respect of the subsequent purchaser as against whom it can still be enforced. If it were to be held to that extent, the principle stated in the Division Bench Judgment would be violated and therefore, the same cannot be accepted. If it were to be held to that extent, the principle stated in the Division Bench Judgment would be violated and therefore, the same cannot be accepted. I am, therefore, of the considered view that the decree obtained by the first and second respondents on 15.12.1986 in O.S.No.459 of 1984 became non-est in law by virtue of the factum of the first respondent in having got reunited with the third respondent subsequent to that decree and thereby made the very decree inexecutable. When such was the legal status of the very decree, there would be no scope to hold that the right of the petitioner in seeking for the relief as claimed in the claim petition cannot be accepted. The order impugned in the revisions, therefore is liable to be set aside and the claim petition even in regard top Lot No.2 of the property made in the claim petition is liable to be granted in favour of the petitioner. Civil revision petition stands allowed. No costs.