A decree creating a charge can be executed without obtaining a separate final decree, as per the amendment to Order 34, Rule 15 C. P. C. by Amending Act 104 of 1976, which has retrospective effect.

P. KODDANDA RAMAYYA, J.

( 1 ) THIS Revision arises out of execution proceedings. It raises the interpretation and the effect of the Amendment to Or. 34, Rule 15 C. P. C. by Amending Act 104 of 76.

( 2 ) THE facts are not in controversy. The petitioner temple obtained a decree against the defendant-tenants for recovery of Rs. 2,102-82 paise towards the arrears of makta and also obtained a charge for the recovery of the said amount in respect of B schedule property.

( 3 ) WHEN the decree-holder filed the present E. P. for the recovery of the decretal amount by sale of the B schedule property in respect of which charge was created by the decree, the said application was dismissed holding that the decree-holder must obtain a final decree as the direction in the decree is not sufficient for him to execute the decree and the Amending act 104 of 76 has retrospective effect. Hence the revision. The defendants judgment-debtors are not represented by Counsel and hence I requested sri A. Ramakrishna to assist the court and he promptly did so.

( 4 ) IN order to appreciate the question raised it is necessary to look at Or. 34, Rule 15 as amended by Act 104 of 1976. "15. (1) All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the TRANSFER OF PROPERTY ACT, 1882, 1882. (2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree. "sub-rule (1) as originally stood was substituted by the Transfer of property (Amendment) Supplementary Act (XXI of 1929) and by the amendment Act 104 of 76 as per section 82 (v) the present sub-rule (2) is added.

( 5 ) IT is seen from a perusal of the Rule that both simple mortgages and charges are put on par and identical procedure was prescribed for obtaining a decree. But so far as the charges are concerned they are confined to the charges within the meaning of Sec. 100 of the Transfer of property Act. The charges mentioned in the said Section 100 are of two kindscharges created by act of parties or arising by operation of law. There is a conflict of judicial opinion whether the charges created by decree come within the meaning of Section 100. A Full Bench of our high Court took the view that a charge created by a decree cannot be considered to be a charge arising by operation of law. Be that as it may the further question is whether the decree creating a charge is enough to execute the decree but a separate suit should be filed for enforcing the decree. In Tiruvengalam vs. Ammanna chandrasekhara Sastry J. , took the view that a decree as it merely declares the existence of a statutory charge on the property and hence the decree-holder must file a separate suit for enforcing the same and the property cannot be brought for sale as if it were a charged decree passed under or. 34, Rules 14 and 15 CPC. Some decided cases took the view that as a matter of construction of the decree if the court directed sale of the property on default of the payment of the amount within a particular period, no further decree need be obtained by the decree-holder and he can execute the decree treating it as a final decree. In view of the conflict of judicial opinion the present amendment was brought dispensing with the requirement of obtaining a further decrees. The Statement and objects in the bill may be perused in this regard. "clause 85sub-Clause (xiii) (New sub-cl. (v)The question whether a decree creating a charge can be executed and the property may be sold in execution or whether a separate suit is necessary, has been discussed in many cases. Where a decree directs sale or provides that the money charged shall be recovered from the property, there is no difficulty. But where the decree does not direct sale and recovery of money fr

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