Kesho Prasad Singh vs Raghubir Prasad Singh

Agarwala, J.—This is an application by the judgment-debtor against an order of the Subordinate Judge of Shahabad and it arises in the following circumstances. The opposite-party obtained against the petitioner a decree for arrears of maintenance. The petitioner preferred an appeal from that decree which is now pending for decision in this Court, namely, First Appeal No. 105 of 1932. When the opposite-party attempted to execute the decree, the petitioner applied to the Registrar of this Court for stay of execution. On 7th September 1932, a consent order was passed by the Registrar by which execution of the decree was stayed on condition that the judgment-debtor deposited in Court the entire decretal amount. It was agreed that the decree-holder should be entitled to withdraw the amount so deposited by giving security to the satisfaction of the Court.

The decree-holder tendered as security certain property which was found sufficient by the Court. The judgment-debtor objected to the security tendered on the ground that it consisted of properties which had been granted to the decree-holder as maintenance for himself and his family and as such it was inalienable. On 21st January, which was the date fixed for considering the objection, the judgment-debtor desired to examine witnesses to show that this property, tendered as security, was not alienable. The Court declined to examine the witnesses and proceeded to decide the matter on a consideration of certain documents.

The finding that the Court has arrived at is that the property tendered as security is property granted to the ancestors of the decree-holder for the maintenance of his branch of the family, but on a consideration of the documents it decided that the property is not inalienable and that the giving of this property as security is an act by which the members of the decree-holder''s family are benefited. Mr. Sushil Madhab Mullick, on behalf of the judgment-debtor, contends that he should have an opportunity to produce his evidence with regard to the point at issue. He contends that, ordinarily, a grant for maintenance is not alienable and relies on the decision of their Lordships of the Privy Council in AIR 1925 170 (Privy Council) where they held that the interest of a person in property granted in lieu of maintenance is a right to future maintenance within meaning of Section 60(1)(n) of the CPC and therefore cannot be attached and sold.

On behalf of the opposite-party Mr. Bhubneshwar Prasad Sinha has contended that the finding arrived at by the Court below is a pure finding of fact, that the Court had jurisdiction to find it, and that this Court has no power in revision to interfere with that finding. In my opinion, if the Court refuses a party a right to lead evidence on a matter on which the parties are at issue, it exercises its jurisdiction with such material irregularity as to vitiate its order, and the proper course is to set aside that order. In my view, in the present case, there was an important question to be decided in regard to the alienability of the property tendered as security; for if the property should turn out to be inalienable the security would be nil.

It is unfortunate that the lower Court should have adopted the course that it has done as it has resulted in the useless prolongation of an enquiry which might have been finished long ago. That, however, cannot now be helped. The result is that the order of the lower Court must be set aside and that Court will now proceed to hear the evidence that the judgment-debtor is prepared to produce. The applicant is entitled to his costs: hearing fee one gold mohur.