The plaintiff-appellant instituted a suit for maintenance O.S. No. 479 of 1940 on the file of the District Munsif’s Court, Ami, against her husband, Bashyam Ayyangar and obtained a decree on 21st March, 1942. The grounds on which separate maintenance was granted were cruelty, neglect and abandonment by the husband and that he was also keeping a concubine. On 27th July, 1943, Bashyam Ayyangar sold the suit property which was charged with the maintenance decree. The sale was for the purposes of paying off the marriage expenses of Bashyam Ayyangar’s daughter who instituted a suit O.S. No. 481 of 1949 and obtained a decree. Bashyam Ayyangar, in executing the sale in favour of the first defendant, did not disclose that the property was charged with a decree for maintenance in favour of his wife and the sale was free from any encumbrance. But there can be no doubt that the property was charged with the maintenance under the decree in O.S. No. 479 of 1940 and the property purchased by the first defendant must therefore be subject to the charge in favour of the plaintiff. The plaintiff executed her decree by filing E.P. No. 660 of 1948 for attachment and sale in enforcement of the charge decree and in execution the plaintiff herself purchased the suit property in Court auction on 5th January, 1949, and also purports to have obtained delivery of possession.

The present suit out of which this appeal arises is instituted by the plaintiff for recovery of possession of the property on the ground of trespass by the first defendant. The action was resisted on the ground that the plaintiff resumed cohabitation with her husband prior to the execution petition E.P. No. 660 of 1948, that they were living as husband and wife for four or five years and that she even gave birth to a child on 16th December, 1948, as established by Exhibit B-2, an extract from the Birth Register. The contention is that on resumption of cohabitation the maintenance decree becomes wiped out and it does not, therefore, become executable and any sale to the plaintiff in pursuance of such a decree would not confer any rights on the plaintiff to the suit property. The decision in Venkayya v. Raghavamma 1, was relied on in support of the defence. The trial Court did not accept that mere resumption of cohabitation without the removal of the grounds for obtaining the separate maintenance would be sufficient to make the decree ineffective and unenforceable and found that the husband visited the wife at her aunt’s place twice or thrice occasionally in 10 days or a fortnight in between during which period she had physical union with him resulting in the birth of the child and that it would not be sufficient resumption of cohabitation having the effect of nullifying the maintenance decree In appeal the learned District Judge took a different view and held that mere resumption of cohabitation with the husband would be sufficient to render the decree in-effective and that was the effect of the decisions relied upon and it was not necessary further to show that the causes which rendered it necessary for a separate maintenance should be shown to have been removed and that the effect of the resumption of cohabitation by the wife puts an end to the very basis of the decree and puts the parties back precisely where they were before the decree was granted. The learned Judge also cited in support of his conclusion the judgment of Basheer Ahmed Sayeed, J., in Kaliammal v. Nachammal2, where the learned Judge held that the entire decree becomes wiped out by reason of the resumption of cohabitation.

In Venkayya v. Raghavamma1, after the wife obtained a maintenance decree against her husband they decided to live together happily and the wife returned to the husband and they lived so for over five years. During this period the wife bore a son to her husband. Five years thereafter she applied for execution of the decree which she had obtained originally and that execution application was o