Janapareddy Latchan Naidu Vs.
Janapareddy Sanyasamma  INSC 29 (11 February 1963)
11/02/1963 HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 1556 1964 SCR (1) 920
Maintenance-Decree by court charging certain
propertiesNature of such decree-If can be executed against other
properties-Code of Civil Procedure, 1908 (Act 5 of 1908), s.
The respondent, wife of the appellant, filed
an execution petition for execution of a maintenance decree obtained by her
which, in addition to the personal liability, created a charge for past and
future maintenance on three lots of properties. After Obtaining the permission
of the Court she purchased two items of the properties subject to her
maintenance charge. Later she 921 filed another execution petition seeking to
bring to sale properties other than those purchased by her in the earlier
execution. The appellant made an application under s. 47 of the Code of Civil
Procedure to record full satisfaction of the decree on the ground that by
purchasing the properties subject to her charge she could not maintain a fresh
application for the sale of the other properties. The Subordinate judge
dismissed the execution petition as not maintainable. On appeal by the
respondent the High Court reversed the decision of the Subordinate judge and
ordered the execution to proceed. On appeal by special leave, this court held :
Held, that an executory charge-decree for
maintenance becomes executable again and again as future sums become due. The
executability of the decree keeps the charge alive on the remaining properties
originally charged till the future amounts cease. The whole of the charge
continues over all the properties jointly and severally and as the charge is
different from a mortgage, it is not permissible to seek an analogy from the
case of a mortgage.
Held, further, that between the appellant and
the respondent the executing court cannot order the respondent to proceed
against properties in her possession even though it can make an election on
behalf of the appellant and enforce the charge against one item in preference
to another belonging to him; but the appellant cannot insist that the
respondent should proceed against the properties acquired by her under the
CIVIL APPELLATE JURISDICTION, Civil Appeal
No. 194 of 1961.
Appeal by special leave from the judgment and
order dated July 28, 1959 of the Andhra Pradesh High Court at Hyderabad in C.
M. A. No. 120 of 1956.
P. Ram Reddy, for the appellant.
K. R. Choudhri, E. Udayarathnam and V. C.
Prashar, for the respondent.
1963. February 11. The Judgment of the Court
was delivered by 922 HIDAYATULLAH.J.-The respondent who is the wife of the
appellant' obtained a decree for maintenance on August 9, 1949, by which the
appellant was ordered to pay Rs. 3,000/per year to her on the 28th day of
February of every year with interest at 6% per year if the payment was not made
on the due date. The decree included ascertained amounts as arrears of past
maintenance and other items to which detailed reference is not necessary. In
addition to the personal liability the decree created a charge for past and
future maintenance on three lots of properties.
The respondent filed execution petition No.
91 of 1952 for execution of the maintenance decree and sought to bring the
properties charged by the decree to sale. She purchased two items of the
properties charged by the decree to sale. she purchased two items of the
properties for a sum of Rs. 20,200 subject to her maintenance charge after
obtaining the permission of the Court. Later she filed execution No. 43 of 1955
seeking to bring to sale properties other than those purchased by her in the
earlier execution. The appellant also filed an application under s. 47 of the
Code of Civil Procedure to record full satisfaction of the decree on the ground
that the respondent by purchasing the properties subject to her charge could
not maintain a fresh application for the sale of the other properties. 'The
Subordinate judge of Visakhapatnam upheld the contention of the appellant and
dismissed the execution petition as not maintainable. The respondent appealed
to the High Court.
The High Court reversed the decision of the
Subordinate judge and ordered the execution to proceed. The appellant has now
appealed after obtaining special leave from this Court.
The short question is whether the decree must
be held to be satisfied because the respondent purchased in an earlier
execution one lot of properties subject to her charge for maintenance. Learned
923 counsel for the appellant contends that the respondent must now look to the
properties purchased by her for satisfaction of her claim in respect of
maintenance past or future. 'In the alternative lie contends that execution
against the properties in his possession cannot proceed till the respondent has
first proceeded against the properties with her. In our opinion neither
proposition is correct.
The maintenance decree passed by the
Subordinate judge of Visakhapatnam is not only a declaratory decree but also an
executory decree. It provides that the appellant shall pay to the respondent
Rs. 3,000 per year as maintenance on the 28th day of February of every year as
long as she lives.
When the first execution was levied the
amounts due up to June 28, 1952, were realised by the sale of the properties of
lots 1 and 2. The respondent as the auction-purchaser deposited Rs. 6,010
towards the balance of the purchase price after deducting the maintenance
amount under the decree as it then stood. The present execution concerns the
sum which fell due between June 28, 1952, and February 28, 1955. Included in
this sum are Rs. 8,000 towards maintenance and Rs. 867-8-0 towards costs.
The contention of the appellant is that the
respondent having purchased the first lot of properties subject to the charge
cannot now recover this amount from the properties remaining with the
appellant. In other words, the appellant contends that there is some kind of
merger of the right under the maintenance decree with the right arising from
the auction purchase and the respondent can enforce her right only against
those properties which she has purchased and not against properties which
remain with the appellant.
The argument involves a fallacy because it
assumes that a charge created by a decree on a 924 number of properties
disappears when the charge-holder in execution of the charge-decree purchases
one lot of properties. An executory charge-decree for maintenance becomes
executable again and again as future sums become due. The executability of the
decree keeps the charge alive on the remaining properties originally charged
till the future amounts cease. In other words the charge subsists as long as
the decree subsists. By the execution the charge is not transferred in its
entirety to the properties purchased by the charge-holder. Nor is the charge
divided between those properties and those which still remain with the judgment
debtor. The whole of the charge continues over all the properties jointly and
severally. Nor is any priority established between the properties purchased by
the charge holder and those that remain. It is not permissible to seek an
analogy from the case of a mortgage. A charge is different from a mortgage. A
mortgage is a transfer of an interest in property while a charge is merely a
right to receive payment out of some specified property. The former is
described as jus in rem and the latter as only a jus ad rem. In the case of a
simple mortgage, there is a personal liability express or implied but in the
case of charge there is no such personal liability and the decree, if it seeks
to charge the judgment-debtor personally, has to do so in addition to the
charge. This being the distinction it appears to us that the appellant's
contention that the consequences of a mortgagee acquiring a share of the
mortgagor in a portion of' the mortgaged proprety obtain in the case of a
charge is ill-founded. The charge can be enforced against all the properties or
In the present case the respondent could
proceed at her option to recover the arrears of maintenance as they fell due
from any of the properties which were the subject of the charge, that is to
say, those which were in the possession and ownership of 925 the appellant and
those in the possession and ownership as auction-purchaser. There is nothing in
law which requires the respondent to proceed against the properties which she
had earlier purchased. There is no question of marshalling of these properties.
It is true that the Court may decide which of the properties charged should be
sold and in what order and the Court does choose between different properties
when ordering sale. To that extent the Court can assist a judgment-debtor. But
this can only be in respect of the properties which the judgment-debtor holds
and against which the charge-holder wants to proceed. But the Court cannot say
to the chargeable that he must exhaust his remedies over and over again against
the properties purchased by him in execution of his charge-decree and subject
to his own charge. Therefore, between the appellant and the respondent the
Court cannot order the respondent to proceed against properties in her
possession even though it can make an election on behalf of the appellant and enforce
the charge against one item in preference to another belonging to him.
In our opinion the respondent was entitled to
proceed against the remaining properties in the hands of the appellant which
continued charged. The executing court may, of course, sell only such items as
may be sufficient to meet the present dues under the decree but the appellant
cannot insist that the respondent should proceed against the properties
acquired by her under the first sale. We express no opinion on the question
whether the decree can be personally executed against the appellant because
that question did not arise here. The appeal accordingly fails and is dismissed