Omission to mention charge in sale proclamation in execution of charge decree is no waiver or estoppel of right to maintenance.

This appeal arises out of execution proceedings, wherein the appellant prayed the Court that her property, which was purchased free of charge for the maintenance decree should not be brought to sale by the decree-holder in O.S. No. 334 of 1947 on the file of the District Munsif’s Court, Cuddalore. The Courts below have held that though the appellant purchased the property on the previous occasion in the execution of the maintenance decree, still the property is not free from the charge, and dismissed her application. It is against the orders of the Courts below, she has filed the present appeal.

In this appeal the same question arises for consideration viz., whether the property is free from charge.

It is not disputed that the property in dispute has been subject to a charge under a maintenance decree obtained by the respondent against one Rajagopal Pandithan and others in O.S. No. 334 of 1947.

The appellant purchased this property from Rajagopal Pandithan, and his wife Angammal for Rs. 2,000 on 24th August, 1949, during the pendency of the maintenance suit filed by the respondent. Therefore the sale dated 24th August, 1949, is not valid, as it is directly hit by the doctrine of lis pendens. But the appellant contends that, when the respondent brought the suit property for sale in pursuance of her maintenance decree, it was not mentioned that the property was subject to future charge and therefore it was sold for its real market value on 7th September, 1958 Under that sale, the property was purchased by one Kesava Koundar, the father of the appellant. Subsequently, the said Kesava Koundar settled the property on the appellant on 19th April, 1961 under Exhibit A-l registered settlement deed. The question turns upon whether the sale dated 7th September, 1958 was free from encumbrances, that is free from charge for ever. According to the appellant, this property was purchased by her father free of all encumbrances; whereas the respondent contends that the property was sold to the appellant’s father under the previous execution proceedings subject to her rights to bring the very property to sale for future maintenance. In order to prove her case that this property was sold free of all encumbrances, the appellant filed Exhibits A-2 to A-5, A-7, A-8 and A-9. In the execution proceedings, it is true that no mention of any encumbrance was made, and so the appellant would contend that the respondent waived the charge for future right of maintenance over the property mentioned in the execution application. On the other hand, the respondent would contend, that since a charge has been created by decree of Court, there was no necessity to specifically mention the same in the execution petition and that she has the right to bring the property for sale once again in execution of the charge decree for arrears of maintenance. In order to find out whether this property was sold free of encumbrances, the Courts below considered whether the property was sold for its full value or the market value. The finding of the Courts below is that the price at which the appellant’s father purchased the property in Court auction sale could not be said to be its real value, and I do not want to interfere with this finding of fact.

Once I come to the conclusion that the property was not sold for its real value, the next question is whether the respondent would be entitled to bring the same property once again for sale for arrears of maintenance accrued subsequent to the sale in favour of the appellant’s father. A Division Bench of this Court in Thangavelu v. Thirumalaswami1, have observed thus:

“......so long as the decree for maintenance is a charge decree in respect of the property any purchaser who buys the property in execution of the decree for arrears of maintenance will only buy that property subject to the charge which still subsists in respect of future maintenance. The liability in respect of future payments of maintenance always remains even af