Judgment

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 nay Rs. 3000 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.

2. 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 for a sum of Rs. 20,200 subject to her maintenance charge after obtaining the permission of the Court. Later she filed execution petition 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.

3. 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 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 he 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.

4. 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 upto 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.

5. 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 which she has purchased and not against properties which remain with the appellant.

6. The argument involves a fallacy because it assumes that a charge created by a decree on a 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 amount cease. In other words the char