Nallammal vs Krishnaswami Naidu and Others

Maheswaran, J.—This revision is directed against the order in R.E.P. 701 of 1982 in O.S. 1552 of 1979 on the file of the District Munsif, Namakkal, restricting the claim of the revision petitioner to maintenance for only three years. The revision petitioner has obtained a decree against her husband for maintenance to be paid at the rate of Rs. 34 per month. The decree was passed on consent by both parties on the 23rd August 1971. The revision petitioner has filed the execution petition claiming a sum of Rs. 4852, towards arrears of maintenance, which her husband has not paid from the date of decree till 21st April, 1982. The execution petition itself is filed on 22nd April 1982. The executing Court restricted the maintenance to only three years and after deducting a sum of Rs. 100 already paid, it ordered execution for arrears of maintenance only for three years. In so doing, the learned District Munsif placed reliance on Art. 105 of the Limitation Act. Art. 105 of the Limitation Act may be extracted for easy reference:-

Description of Suit

Period of limitation

Time from which per begins to run

105By a Hindu for arrears of maintenance

three years

When the arrears are payable

If only the executing Court had gone carefully into Art. 103 and examined the same, it would have found that Art. 105 applies to a suit for arrears of maintenance as is evident from the caption ''description of suit''. What was overlooked by the executing court is that this is a petition for execution of decree for maintenance filed by the decree holder-wife. The proper Article that would govern the execution petition would be Art. 136 of the Limitation Act. which runs thus:-

Description of Suit

Period of limitation

Time from which period begins to run

436For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil Court)

Twelve years

When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment of delivery in respect of which execution is sought, takes place; Provided that, an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation".

Twelve years have not elapsed from the date of decree and, therefore, the execution petition is perfectly maintainable for the entire arrears claimed from the date of decree till 21st April 1982. The order of the Court below is wrong and has to be set aside and is hereby set aside. The revision is allowed with costs. As the execution petition is very old, the executing court will expedite the same.