Md. Abdul Alam vs Amirunissa and Others

Siadayali Khan, J.—This is first appeal No. 162, register No. 1 of 1951-52. The Second Court, City Civil Courts, by judgment dated 22-12-1951, passed a judgment in an execution proceeding. Hence this appeal. We have heard the arguments of Shri Qader Mohiuddin, the learned advocate for the Appellant and that of Shri Abdul Ali Queraishi for the Respondents.

The facts alleged are that a decree for maintenance of Rs. 75/- for the wife, Amirunnissa and two daughters, Mehrunnissa and Mujibunnissa and two sons, Mehboob-ul-Islam and Habibur Rahman of the Appellant, Abdul Allam, was passed on 1-3-1943. An execution petition was filed on 25-10-1951 for the arrears of the last three years, i.e., from 1-11-1948 to 31-10-1951. The pleas taken by the Appellant, inter alia, were that under the Muslim Law father''s liability to maintain the children ceases on their attaining puberty; that all the four children had attained puberty and the guardianship of the mother had ceased; that the Appellant was, however, prepared to maintain his children if they would reside with him and that as the wife failed to reside with him, she was irrevocably divorced and, therefore, the decree ceased to be executable.

The learned Judge took the view that as the divorce was alleged to have been pronounced on 15-12-1951, the matter cannot be gone into in the execution petition before him as it related to a period before the pronouncement of divorce. Regarding the attainment of majority by the children he held that he was not prepared to hold that the provisions of the personal law would effect revocation of a decree and that the Appellant should institute fresh proceedings for the restoration or the children to his proper custody; till such an order by a competent court is given, he cannot in execution take notice of the attainment of majority and hold that the decree is in executable.

The learned advocate relying on'' the cases cited in the margin, i.e., Vasantam Venkayya Vs. Vasantam Raghavamma, ; In Re: Punjalal Chunilal, ;-- Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, , argued that a court in execution can take note of subsequent events nullifying a decree and a maintenance decree having peculiar characteristics gets automatically extinguished when the basis on which it rests is demolished by subsequent events. We have carefully considered this argument.

In-- Vasantam Venkayya Vs. Vasantam Raghavamma, (A)'' there was a decree for maintenance; after some time the wife went back to the husband and lived with him for 5 to 7 years and then falling out again prayed for the execution of the original decree. It was held that the principle of the English law of alimony is applicable and, therefore, when the wife subsequent to the decree resumed cohabitation with her husband, the English principle became applicable, namely, that the decree became ineffective and could not be enforced. It was further observed that the resumption of cohabitation puts an end to the cause of complaint and, therefore, the power of the court to make an order passes away altogether. It was noticed by the court that the wife mainly relied on the provisions of the Code of Civil Procedure; that under it a decree remains in force unless it has been satisfied or adjusted and the satisfaction or the adjustment has been recorded. But it was held that:

The present case is not concerned with a matter 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 had by the action of the parties themselves been demolished.

In-- In Re: Punjalal Chunilal, it was held that where the husband is called upon to show why he had failed to comply with the order to pay his wife maintenance u/s 488, Sub-section (3) he can raise a plea of divorce. In-- Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, '' one Dr. Mukherji had purchased from the mortgagor the equity of redemption relating to almost the whole property and had also purchased the entire mortgage decree from the mortgagees. It was held that the legal effect of it was that the mortgage decree was satisfied and that though an execution court cannot refuse execution of a decree so long as it was not satisfied, yet it can take note of facts which amount to satisfaction. The rest of the two cases, '' 8 Rang 60'' and ''1949 Bom 369'' do not appear to be relevant as there are no cases on the pages quoted having any relevancy to the questions under consideration.

The principle enunciated in-- Vasantam Venkayya Vs. Vasantam Raghavamma, '' requires careful consideration. It will be seen that this case goes against the trend of authority and well-established law that an executing court cannot go against the decree and must execute it as it finds it. It is, therefore, difficult to agree with it. Even agreeing with it it does not go further than this that the decree of maintenance may not be executed if the basis of it is removed by subsequent acts of the parties themselves. The learned Judges thought that they may not act on the provisions of the CPC in disregard of a sound principle of law and enforce a decree the basis of which had by the action of the parties themselves been demolished.

This case was considered in--Singaravelu v. Pattammal AIR 1949 Mad 429 (D), and it was observed that the principle enunciated in it is analogous to satisfaction of a decree; otherwise, it was held that the executing court in execution proceedings cannot enquire into an objection by the husband based on unchastity of the wife subsequent to the passing of the decree and that the husband''s remedy was by way of a separate suit and not by way of an objection to the execution of the decree.

The old case--Maharana Ranmalsangji Bagwantsangji v. Bai Shri Kundan Kuvar 26 Bom 70 V (E) is also to the same effect and it was held that neither party can in execution go behind a decree or add a condition which it did not contain it was held further that no modification of a decree could be allowed in execution thereof on grounds not recognised in the decree itself as giving rise to such modification. It should be noted that as in this case the execution petition was in respect of arrears of maintenance prior to the date of divorce no question arose as to whether any notice of the fact that the husband has subsequently divorced the wife could be taken or could be regarded as relevant. But regarding the other part that the attainment of majority, according to Muslim Law, exempts the father from an obligation to maintain the children, the question is whether this fact could also be taken note of in execution and the decree refused execution.

We do not think this would be just or we would be justified in ignoring the provisions of the CPC when this decree is enforceable and there are no such grounds as are mentioned in Section 48, CPC for refusing execution. The important thing to note is that an executing court is not the proper forum for going into the questions of substantive Muslim Law, viz., whether the children have attained majority and whether on attaining majority, even in case of girls, there is no liability to maintain on the part of the father till they are married. The proper forum for that is a civil court, before which the question should be put and gone into after proper enquiry. Hence, as far as the children are concerned, we do not think that an executing court should take note of their attaining majority alleged by the father and enter into an enquiry and decide it either way.

The next case of-- In Re: Punjalal Chunilal, '', not being a civil case, is not exactly apposite; and even if considered relevant, does not add anything to the principle enunciated in-- Vasantam Venkayya Vs. Vasantam Raghavamma, ''. The last case relied on, viz.,-- Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, '' does not deal with or lend support to the principle formulated in-- Vasantam Venkayya Vs. Vasantam Raghavamma, discussed above. It only lays down that when circumstances amounting to the satisfaction of a decree occur, the executing court can take note of it. This case has affirmed in express words that the executing court cannot go behind a decree and must execute it as it finds it. But it has approved of the following dictum of Mahmood J. in--Kudhai v. Sheo Dayal 10 All 570 (F) that:

When subsequent to a decree a portion of the rights to which the decree relates devolves either by inheritance or otherwise upon the judgment-debtor or is acquired by him under a valid transfer the decree does not become incapable of execution, but is extinguished only pro tanto.

Having regard to the above rulings we are clearly of the opinion that an executing court can-not go behind a decree and must execute it as it finds it, and the only exception to it that may perhaps be countenanced, appears to be such cir-circumstances as indicate accord and satisfaction of the decree itself. Hence, in this case, as neither divorce nor the fact of the attainment of majority being relevant for the reasons stated above, the executing court could not have taken notice of them. We, therefore, do not see any substance in this appeal. It is rejected with costs.