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PETITIONER: JANAPAREDDY LATCHAN NAIDU

       Vs.

RESPONDENT: JANAPAREDDY SANYASAMMA

DATE OF JUDGMENT: 11/02/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1556            1964 SCR  (1) 920

ACT: Maintenance-Decree  by  court charging  certain  properties- Nature  of  such  decree-If can be  executed  against  other properties-Code of Civil Procedure, 1908 (Act 5 of 1908), s. 47.

HEADNOTE:  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  respon- dent  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

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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 first sale.

JUDGMENT: 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

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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 severally.    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

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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 with costs.                                         Appeal dismissed. 926