The charge created by a maintenance decree continues to attach to the charged property even if it is sold in execution of the decree, but the surplus sale proceeds are free from the charge and the decree-holder is not entitled to claim them to satisfy future maintenance payments.

( 1 ) IN this revision the order passed by the Additional Subordinate judge (in full additional charge of the Principal Sudordinate Judge), Karasaraopet in E. A. No, 67/76 in E. P. No. 179/75 in O. S. No. 130/70 is impugned.

( 2 ) THE above mentioned E. A. was filed by the decree-holder in o. S. No. 130/70 with the prayer that the Court should not permit the respondent-judgment-debtor to withdraw the surplus sale-proceeds deposited by the auction-purchaser to the credit of E. P. No. 179/75 in O. S. 130/70.

( 3 ) THE petitioner-decree-holder is the wife of the respondent-judgment-debtor. She obtained a decree for maintenance-past as well as future- in O. S. No. 130/70 on the file of the Sub Court, Narasaraopet against her husband, the respondent. In the said decree, a charge was also created against certain items of property belonging to the respondent-judgment-debtor. In the execution of the said decree, the petitioner brought one of the charged items of property to sale, in the auction held by the court. The sale was also confirmed. After the payment of the maintenance amount mentioned in the Execution Petition, a sum of Rs. 4. 079/- representing the surplus sale proceeds is lying in Court deposit. The petitioner filed the above mentioned E. A. requesting the Court to keep the said amount in court deposit so as to enable her to recover her maintenance amount that is going to become due in future and also not to permit the respondent-judgement-debtor to withdraw the surplus sale proceeds lying in court deposit.

( 4 ) THIS petition was opposed by the respondent-judgment-debtor. He contends that at present there is no decree which can be executed against him and hence he is entitled to receive the surplus sale proceeds lying in court deposit, since the surplus proceeds is free from charge when the charged property was sold in the auction held by the Court towards satisfaction of the E. P. amount and is, therefore, entitled to withdraw the surplus sale proceeds.

( 5 ) THE learned Subordinate Judge took the view that the liability in respect of future payment will remain even after the sale of the charged property and in such a case the charge will not be extinguished by sale and hence the auction purchaser ordinarily gets the charged property subject to the charge and the decree-holder can realise her future maintenace amounts by enforcing her charge against the very same property which she has earlier brought to sale and hence the rights of the decree-holder are not affected even if the judgement-debtor were to be allowed to withdraw the surplus sale proceeds now lying in the court deposit. The learned Subordinate judge, therefore, held that since the title to the surplus sale proceeds vests in the respondent-Judgment-debtor he is entitled to have the benefit of the custody of it and consequently he can be allowed to withdraw the surplus sale proceeds. So holding, he dismissed the petition.

( 6 ) FROM the facts narrated above, it is clear that all the arrears towards past maintenance were paid off from out of the sale proceeds after one of the items of the properties of the judgment-debtor was sold and the surplus sale proceeds amounting to Rs. 4,079/- were lying in court deposit.

( 7 ) SRI Y. G. Krishnamurthy, the learned counsel for the decree-holder, contends that the said amount which was realised from the sale of the charged property of the judgment-debtor cannot be said to have belonged to the judgment-debtor and he should not be permitted to withdraw the said amount and it should be made available to the decree-holder towards the satisfaction of the future maintenance that is going to become due, according to him, the charge does not extinguish with the sale of the charged property and hence the charge continues to stand attached to the surplus proceeds lying in court deposit and the decree-holder has, therefore subsisting right on the surplus sale proceeds and the judgment-debtor should not, therefore, be per