Thathammal vs V. Parankusam Pillai

King, J.—These appeals arise from a somewhat unusual situation which has arisen between a husband and wife. In O.S. No. 289 of 1927

the wife sued her husband for the return of jewels or their value and in due course in December, 1928, obtained a decree against him. Meanwhile

early in 1928 the husband sued his wife for restitution of conjugal rights and obtained a decree ordering such restitution on the 7th March, 1928. In

1930, both parties filed execution petitions. The wife''s execution petition is 609 of 1930 filed on the 7th August and the husband''s 627 of 1930

filed on the 10th September. Both these execution petitions were disposed of on the 17th September. The prayer of the husband that the wife''s

decree should be attached was allowed and the prayer of the wife that execution should proceed against the person of her husband to recover the

money due to her was dismissed apparently on the ground that the decree was under attachment in execution of the husband''s decree. Against

both these orders the wife has appealed, the subject-matter of C.M.A. No. 54 being the order dismissing her application and the subject-matter of

C.M.A. No. 55 being the order allowing attachment in her husband''s execution application.

C.M.A. No. 55 may be very briefly disposed of as it is only of academical interest. The appellant argues that the Court ought not to have

ordered attachment on the ground that the previous attachment already effected in 1929 was still in force. According to Order 21, Rule 32(4) an

attachment of a decree in favour of a decree-holder in a suit for restitution of conjugal rights will cease in certain circumstances at the end of one

year. Those circumstances having arisen in this case the previous attachment which was effected in March, 1929 had already ceased by the time

the new attachment was ordered in September, 1930.

C.M.A. No. 55 therefore fails and is dismissed.

The main contention in C.M.A. No. 54 is that the mere fact that the wife''s decree had been subject to attachment is no bar to her executing the

decree herself. The provision in the procedure Code which deals with the attachment of decrees is Order 21, Rule 53, and Sub-section 2 of that

rule reads as follows:

Where a Court makes an order under Clause (a) of Sub-rule (1), or receives an application under sub-head (ii) of Clause (6) of the said sub-rule,

it shall, on the application of the creditor who has attached the decree of his judgment-debtor, proceed to execute the attached decree and apply

the net proceeds in satisfaction of the decree sought to be executed.

It is quite clear from this provision that in ordinary cases an attaching decree-holder''s judgment-debtor can execute the decree in his own favour

provided only that the proceeds of that execution go to satisfy the decree of which he is the judgment-debtor. The question then is, whether there is

any reason for excluding the attachment of the decree in the present case from the operation of this rule? So far as we can see Order 21, Rule 53

applies to all cases where the subject-matter of an attachment is a decree. Under the law it may be that the decree-holder in this case, i.e., the

husband, is unable to have the decree which he has attached sold under Order 21, Rule 32(3) until one year has elapsed from the date of his

attachment but we can see no provision which would prevent the wife from executing her decree during that period of one year so long as the last

clause of Rule 53(2) that the net proceeds are to go in satisfaction of the decree against her is not disregarded.

In the result we consider that the learned City Civil Judge ""was wrong in dismissing the execution petition filed by the appellant (E.P. No. 609 of

1930). We allow her appeal, set aside the order of the lower Court and restore the execution petition to file for disposal according to law.

There will be no order as to costs in either appeal.