Adusumilli Sesharatham vs Atluri Jhansi Lakshmi Bai and Others

Y.V. Narayana, J.—The decree-holder in E.P.No. 73 of 1987 in O.S.No. 64 of 1970 on the file of the learned Surbordinate Judge, Gudivada filed this Civil Revision Petition against the order dated 7-10-1989 passed in E.A.N0. 179 of 1989 allowing the application by declaring that the Decree Holder is not entitled to prosecute the decree for realisation of the decretal amount against the schedule property alone leaving Ac. 6-97 cents of the 3rd Judgment Debtor and granting stay of all further steps in the E.P.

This revision petition raises an important question of law as to whether the Decree Holder is entitled to proceed against some of the charged properties only, leaving the other charged properties as per the whims and fancies of the Decree Holder.

Brief facts of the case are: The petitioner herein filed the suit O.S.No. 64 of 1970 for maintenance and obtained a decree dated 30-12-1971. Under the said decree a charge was created on plaint A and B schedule properties for the decretal amount i.e. past and future maintenance. Respondents 2 and 3, the purchasers of the properties, were added as Judgment-Debtors 2 and 3. The second Judgment Debtor purchased an extent of Ac. 2-88 i.e. two items of the charged-property in R.S.No. 80/1 and another extent of Ac. 0-28 cents in R.S. No. 80/2. The third Judgment Debtor purchased an extent of Ac. 6-97 in R.S. No. 80/3. The petitioner filed the present E.P. for the sale of two items of the charged property only which were purchased by the second Judgment Debtor i.e. second respondent, leaving the property purchased by the third Judgment Debtor i.e. third respondent herein. The first respondent, who is the wife of the second Judgment Debtor filed the present E.A.No. 179 of 1989 u/s 47 C.P.C. for a declaration that the petitioner is not entitled to prosecute the decree for realisation of the decretal amount against Ac. 2-88 cents in R.S.No. 80/1 alone, leaving Ac. 6-97 cents in R.S.No. 80/3 purchased by the third Judgment Debtor and that the petitioner has right only to claim recovery of the decretal amount in proportion to the extents of lands held by the respondents 2 and 3. The petitioner and third respondent filed separate counters opposing the same. Considering the entire material available on record and upon hearing the arguments of the learned counsel for the parties, the Court below allowed the E A. as stated above and consequently dismissed the E.P. filed by the petitioner. Aggrieved by that order in the E. A., the present revision petition is preferred by the petitioner-Decree Holder.

Learned counsel for the respondents 1 and 2 raised a preliminary objection that without filing a revision petition against the order of dismissal of the main E.P., the present C.R.P. filed against the order in the E.A. is not maintainable. The learned counsel for the petitioner contended that omission of filing of C.R.P. against the dismissal order in E.P., does not render the present revision petition as infructuous; that the order passed in the E.P. is only a dependable order that when once the order in E.A. is set aside, automatically the order in the E.P. will revive. In support of his contention he relied on the decision reported in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, where in it was held as under:

"The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called ''dependant orders'' and if the order excusing the delays is itself set aside in the Supreme Court appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory."

In view of the above decision it cannot be said that the present revision petition is infructuous as no revision was filed against the order in the main E.P. If the revision is allowed and the order of the Court below in the E. A. is set aside, men consequently the dependant-order in the main E.P. passed by the Court below will also be set aside. So the preliminary objection raised by the learned counsel for the respondents 1 and 2 is held to be unsustainable.

The learned counsel for the petitioner contended mat the Court below erred in allowing the E.A. holding that the petitioner-decree holder lacks bona fides in leaving major extent of the property in the hands of the third Judgment Debtor and in choosing to proceed against the small extent of property in the hands of the first respondent herein out of the entire charged property. It is to be noted here mat the Court below while observing that there are no mala fides on the part of the petitioner-Decree Holder, opined that the petitioner lacks bona fides. Ex facie this observation of the Court below is inconsistent, erroneous, irregular and illegal.

Learned counsel for the petitioner further contended that a decree creating charge in a suit for maintenance is only an act of the Court and not by operation of law as contemplated u/s 100 of Transfer of Property Act. It is to be noted that Section 100 T.P.Act is restricted in its operation to two categories of charges viz., those created by act of parties and those created by operation of law and a charge created by a Court may be regarded as ''judicial lien''. The learned counsel contended mat such a charge can be executable, even without filing a separate suit. In support of his submission, the learned counsel relied upon the decision of this Court rendered in Rama Mandiram v. Raghavamma 1984(1) ALT 8. He also contended further that the character of a maintenance Decree is a recurring one; and mat the sale of the property in execution is not free from encumbrance as in the case of a mortgage decree; mat the property can be sold each time whenever the future maintenance becomes due and in support of his contention he relied on the decision of Mysore High Court reported in Venkata Gowda v. Devamma, AIR 1964 Mysore 40. He also contended that when once the maintenance is fixed and a charge declared, whether by a decree or otherwise, a floating charge over the property is created which crystallises month by month as each arrear falls due and where there is a decree charging a number of properties, the charge-holder has got uncontrolled and untrammelled right to enforce his charge against any item of property he pleases, whether the charge is divisible or indivisible. In support of his contention he relied on the decision of Nagpur High Court reported in AIR 1948 44 (Nagpur) .

On the other hand the learned counsel for the first respondent contended that even if Section 82 of T.P. Act is not available by reason of the charge created by the Court or the decree does not fall within the meaning of Section 100 CPC, that does not take away the jurisdiction of the Court to work out equities; under the Doctrine of Equity; that the petitioner-Decree Holder proceeding against the property of the second respondent, which was in the hands of the first respondent and leaving the major portion of the property of the third respondent, itself shows that the conduct of the petitioner is not bona fide and that the Court below has rightly exercised its discretion vested in it reasonably and allowed the E.A. filed by the first respondent i.e. the wife of the second Judgment Debtor. In support of his contention he relied on a decision of Madras High Court reported in Sambandam Pillai and Others Vs. Ramaswami Naidu and Others, . That is a case relating to mortgage. No doubt there is a discretion vested in the Court in fixing the order in which the property should be put up for sale and the discretion is of course to be exercised in a reasonable arid just manner consistent with the equities of the case. In the present case the Court below held that there are no mala fides on the part of the petitioner-Decree Holder in proceeding against the properties purchased by the second Judgment Debtor which are in the hands of the first respondent, leaving the properties purchased by the third Judgment Debtor. It is to be noted that the petitioner has been trying since last ten years her level best to realise the decretal amount by bringing the properties purchased by the third Judgment Debtor (to sales) and failed to realise the same. Having failed in her attempt since last ten years, now she filed the present E.P. to bring the properties of the second Judgment Debtor which are in the hands of the first respondent (to sale). In my view the Court below is not right in applying the decision rendered in Sambandam Pillai and Others Vs. Ramaswami Naidu and Others, . which relates to a mortgage, particularly when the case on hand deals with a decree for maintenance creating a charge on the suit Schedule properties, which is quite separate and distinct with the case relied on by the first respondent. There is no question of applying the Doctrine of Equity in this case. A charge created by the Court is like a judicial lien which is separate and distinct from the charge created u/s 82 of T.P. Act. The petitioner is perfectly entitled to proceed against any one of the charged properties created by the Court, leaving the rest of the charged properties. The charge created by the Court cannot be split up. The maintenance decree being a recurring one, charge created by the Court can be executable even without filing a separate suit. For the above reasons I am of the opinion that the petitioner-Decree Holder is entitled to bring the properties of the second Judgment Debtor, lying in the hands of the first respondent for sale in order to realise her decretal amount.

In the result the order of the Court below in EA No. 179 of 89 is set aside. Consequently the dependent order of the Court below in E.P.No. 73 of 1987 is also set aside. The C.R.P. is allowed setting aside the common order of the Court below dated 7-10-1989. No costs.

The Court below is directed to dispose of EP.No. 73 of 1987 afresh in accordance with law within two months from the date of receipt of mis order.