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Civil Revision No. 72 of 1957, decided on 9th January 1961.

S. 2 (2)‑Decree‑holder need not necessarily be plaintiff‑Person in whose favour decree confers some right enforceable under it also decree holder.

A decree‑holder as defined by subsection (2) of section 2 of the Civil Procedure Code, 1908 need not necessarily be a plaintiff. It is enough if the decree confers some right enforceable under it upon him. A defendant can also become a decree‑holder and can execute the decree, if the plaintiff fails to execute the decree granted to him. Where, therefore, a decree in favour of the plaintiffs was granted on the condition, that they would pay maintenance annually to the defendant, it was held that the defendant was a "decree‑holder" as defined by the Civil Procedure Cods, 1908 and the maintenance, when due, could be recovered by the defendant in execution of that decree without recourse by her to a further suit for maintenance.

I L R XIX Cal. 139 rel.

Mathura Dos Prabhu Dayal v. Brij Rani and others A I R 1929 Lah. 492; Vythilinga Pandarasannadhi v. Board of Control, Thiagarajaswami Devasthanam A I R 1932 Mad. 193 and Bai Karimabibi v. Abderehman Sayad Banu A I R 1923 Bom. 26 ref.

S. 48 (1) (b)‑Decree directing payment of fixed amount of grain and cash periodically by way of future maintenance‑Executable on occurring of default even after expiry of 12 years from date of decree.

Kazi Abdul Rashid for Petitioner.

Peer Bakhsh Khan for Respondent No. 2.

Other respondents : Ex pane.

Date of hearing : 9th January 1961.

A decree for possession of certain agricultural land was passed in 1927 in favour of the plaintiffs on the condition, that they shall pay to their step‑mother, Mst. Rehmat Sahiba, the defendant, 1 Chhat maize in Kharif and 1/2 Chhat wheat in Rabi, and Rs. 25 cash annually. The defendant presented an execution application to the Sub‑Judge Mansehra on the 7th of May, 1953, for the recovery of her maintenance for the preceding three years. The applica tion was accepted, but on appeal by the plaintiffs the learned District Judge of Hazara held that Mst. Rehmat Sahiba was not a decree‑holder, and that her application was also time‑barred, having been presented more than twelve years after the decree was passed, and as such, it was not executable. According to the learned Judge, the only remedy open to the lady was to institute a suit for maintenance on the basis of the conditional decree.

2. The order of the learned District Judge is clearly unten able and manifestly against the weight of the authorities to the contrary. He seems to have fallen into an error to think that "decree‑holder" means only a person in whose favour a decree is passed. "Decree‑holder" is defined by subsection (2) of section 2 of C. P. C. as follows :‑

"Decree‑holder means any person in whose favour a decree has been passed or an order capable of execution has been made."

No doubt a decree in express terms was not passed in favour of the petitioner, but an order of maintenance capable of execution had been admittedly made in her favour, and as such, she was a "decree‑holder" as defined by the Civil Procedure Code.

3. In Mathura Das‑Prabhu Dayal v. Brij Rani and others (A I R 1929 Lah. 492), it was held that a decree‑holder need not necessarily be a plaintiff. Even a sub‑mortgagee and a puisne or prior mortgagee can also become decree‑holder on the happening of certain contingencies. In Vythilinga Pandarasannadhi v. Board of Control, Thiagarajaswami Devasthanam (A I R 1932 Mad. 193), Their Lordships went so far as to say that a decree‑holder need not be even a party to the suit. It is enough if the decree confers some right enforceable under it upon some persons mentioned in it. As already pointed out, in the present case the decree in favour of the plaintiff's was granted on the condition, that they would pay maintenance annually to the petitioner. The order in favour of the petitioner has been expressly incorporated in the decree sheet. It is frankly conceded that the decree confers a right on the petitioner which is enforceable in execution proceedings. In Bai Karimabibi v. Abderehman Sayad Banu (A I R 1923 Bom. 26), it was held that a defendant also can become a decree holder and can execute his decree, if the plaintiff fails to execute the decree granted to him. In I L R XIX Cal. 139, the question which was referred to the Full Bench was whether "a decree having been made declaring a person's right to maintenance at a certain rate, and directing the payment of such maintenance in future, can the maintenance, when due, be recovered in execution of that decree without further suit " The answer was given in the affirmative. The present case is almost on all fours with the case before the Full Bench.

4. As regards the question of limitation, perhaps the attention of the learned District Judge was not invited to clause (b) of subsection (1) of section 48, C. P. C., which reads as follows: --

"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, (twelve years) from the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree."

The order in favour of the petitioner was for payment of fixed amount of grain and cash periodically by way of future main tenance, and as such, she could execute the decree in case of default, even if the default was made more than twelve years after the passing of the decree, but within three years of the presentation of the application.

5. The result is that the revision petition is accepted with costs, the order of the Appellate Court is set aside and that of the original Court is upheld.

K. B. A, Petition accepted.

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