A decree declaring a charge does not create one. In such a case, the decree-holder cannot bring the property to sale without getting preliminary decree for sale under Order 34, C. P. C.

CHANDRA SEKHARA SASTRY, J.

( 1 ) THE decree-holder in O. S. No. 445 of 1955 on the file of the District Munsifs Court, Vijayawada is the appellant in this second appeal, which arises in execution of that decree. The suit was filed by recover a sum of Rs. 2,500. 00 being the Principal and interest due on a promissory note dated 16-11-46 executed by late S. Appayya, husband of the 1st defendant and father of defendants 2 and 3, as manager of the joint family defendants 1 to 3 and defendants 4 and 5 in favour of the plaintiff for Rs. 1800. 00. It is admitted that the amount represent the unpaid purchase money due to the plaintiff in connection with the sale deed executed by him in favour of the defendants. That suit was decreed in the following terms:". . . . this Court do the order and decree that the 5th defendant do pay to the plaintiff the sum of Rs. 2500. 00 with interest on Rs. 2355-13-0 at 0-12-0 per cent per mensem from 26-7-55 date of suit to this date together with further interest at 6 per cent per annum on the aggregate amount adjudged from this date to the date of realization and do also pay to the said plaintiff Rs. 407-9-0 the costs of suit with interest thereon at 6 per cent per annum from this date till date of realization, that out of the above Rs. 2500. 00 defendants 1 to 4 are liable to pay the said plaintiff to the extent of Rs. 1644-1-2 with interest thereon at 0-12-0 per cent per mensem from 26-7-55 date of suit to this date together with further interest at 6 per cent per annum on the aggregate amount advent per annum on the aggregate amount adjudged from this date to the date of realization and do also pay to the said plaintiff Rs. 260. 00 the proportionate cost of suit with interest thereon at 6 per cent per annum from this date till date of realization. It is further ordered and decreed that the plaint schedule property to stand charged for the amount decreed. "to this, the plaint schedule is attached. Defendants 1 to 4 filed a petition in the District Munsifs Court, Vijayawada under Ss. 47 and 151 C. P. C. against the decree-holder and the 5th judgment debtor alleging that the decree in this suit was only a money decree and that a charge on the schedule property was declared and so, in execution, the decree-holder is not entitled to sell the property charged under the money decree. Unless he brings the suit on the basis of the declaration of the charge in the decree under the provisions of Order 34, Rules and 15 C. P. C. , the charged properties cannot be sold in execution. Both the Courts below held that the decree declaring a charge did not create one. Therefore in the view of the lower Courts, the charged property cannot be sold unless a preliminary decree and a final decree were passed under Order 34 C. P. C. Hence, this second appeal is filed by the decree-holder.

( 2 ) FOR the appellant, reliance is placed upon the decision of the Madras High Court in Buchayya v. Sriramamma, AIR 1931 Mad 603 (1) wherein it was held that where a decree creates a charge on the property in favour of a person such person is entitled to execute the decree without any further suit for sale of the property covered by the charge. The decree in that case is one for maintenance and the charge was created for the first time by the decree therefore, it follows that that decision does not really apply to the facts of the present case, which is one for recovery of unpaid purchase money for which there is a statutory charge under section 55 of the Transfer of Property Act. For the respondents, reliance is placed upon the decision in Ammanna v. Subbayya, 69 Mad LJ 854. That case arose out of a suit on a promissory note, which was executed by the defendants for unpaid purchase money due to the plaintiff in connection with a sale deed executed by him in favour of the defendants. A decree was given for the amount claimed against the defendants 1 and 3 and a charge was given on the properties set out in the schedule attached to the p

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