Jamalbhai Ismailbhai vs Johrabibi Badasaheb and Others

Jhala, J.—This is a First Appeal against the decision of the Civil Judge, Senior Division at Junagadh, allowing execution of decree in Suit No.

7 of St. 1993 Political Branch B class.

Shri V.G. Hathi represented the appellant, while Shri Kikani was present for the-other side, but was not called upon to reply.

In this case Shri Hathi contended that so far as Rs. 90 per month by way of maintenance were concerned, the decree created a charge on

certain Giras property and in case the amount recovered was not sufficient, then and then only the plaintiffs had a right to executes the decree

against the property mentioned in. the subsequent sentences. He also alleged that the defendant had paid regularly Rs. 90 per month till 1948 and it

is only when the change was introduced and the levy of Girasdars was fixed by the Government that the income of the Giras property dwindled

and therefore it was not possible to pay the full amount from that property. As at present the income of the Giras property has dwindled, the

plaintiffs have no right to execute their decree to the full amount but only in proportion to the income at the Giras property.

These arguments, to say the least, are absolutely unconvincing. If really the income of the Giras property has dwindled, then the only course

open to the defendant would be to get the amount of maintenance decreased by suit. Till that is not done BO, the present decree stands and is

executable and even according to the arguments of Shri Hathi as the Giras property now is not sufficient to pay Rs. 90 per month, it is open to the

plaintiffs to proceed against other property and therefore from that stand-point no error seems to have been committed by the Court below. But I

go further and state that granting that there is a charge on the particular property as regards the amount of maintenance, then also the plaintiffs are

at liberty to proceed either against the property charged or against other property or properties of the defendant. In the present case, on the other

hand, there is a specific operative portion in the decree giving a preference of tight--whether we described it as a charge or not--and therefore

there has been no error from that stand-point also. Whenever any property is charged for any decretal amount the option stands with the plaintiff to

proceed either against the property charged or against other property or properties of the defendant. Thus, from all the stand-points, the view

taken by the lower Court seems to be a sound one.

The appeal is, therefore, dismissed with costs.