A charge created by a decree of the court is not included within the scope of S. 100 of the Transfer of Property Act and can be enforced in execution of the decree.

JUDGMENT: This is an appeal directed against the order and decree of the learned Subordinate Judge of Ramanathapuram at Madurai in E. P. No. 20 of 1954 in O. S. No. 29 of 1948.

2. The facts are: The petitioner Seethalakshmi Ammal had obtained a maintenance decree in a partition suit O. S. No. 29 of 1948, in regard to which a charge was created on certain items of the plaint Aschedule. This Seethalakshmi Ammal is seeking to bring these properties to sale and the question to be decided is whether a separate suit should be filed or whether the right can be enforced in execution. The lower Court held that a separate suit should be filed. Hence this appeal.

3. There can be no doubt that a separate suit should have been filed if the charge created in this case falls under S. 100 of the Transfer of Property Act. Section 100 defines "a charge" and states what provisions of the Act apply thereto and against whom it is enforceable.

4. A person according to this section is said to have a charge on the immovable property belonging to another when (1) such property is made security for the payment of money due by the latter, and (2) such transaction does not amount to a mortgage. A mortgage is defined in S. 58 of the Transfer of Property Act. A charge under S. 100 may be created either by act of parties or by operation of law.

5. There is a difference of opinion on the question whether this section is exhaustive of all kinds of charges. One view is that it is exhaustive of all charges and drat a Court is not justified in introducing new conceptions of charges not supported by the statutes in India. The other view is that the section is not exhaustive and that there are certain kinds of charges like those created by decree of Court which are not included within the purview of S. 100; Kashi Chandra v. Priyanath, 83 Ind Cas 424: (AIR 1924 Cal 645) (A); Hari v. Tapai, 88 Ind Cas 923: (AIR 1926 Pat 31) (B); Braja Sunder v. Sarat Kumari, 38 Ind Cas 791: (AIR 1916 Pat 252) (C); Ambalal v. Narayan, 51 Ind Cas 929: (AIR 1919 Bom 56) (D); Shankar v. Ganpat, 119 Ind Cas 186: (AIR 1929 Bom 227) (E); Fatehchand v. Indian Cotton Co., 157 Ind Cas 292: (AIR 1935 Nag 129) (F); Mt. Kawtika Bai v. Bachraj, 150 Ind Cas 492: (AIR 1934 Nag 147) (G); Venkata Rao v. Zunkari Marwadi, 148 Ind Cas 196: (AIR 1934 Nag 83) (H); Mt. Prem Kuer v. Ram Lagan Rai, AIR 1948 Pat 199 (I); Debendra Nath v. Smt. Trinayani Das, AIR 1945 Pat 278 (J); Ghasi-ram v. Kundanbal, AIR 1940 Nag 163 (K); Durga Prasad v. Mt. Tulsa Kuer, AIR 1939 All 579 (L); Sashi Bushen v. Bhupendra, AIR 1936 Cal 112 (M); Maina v. Ashan, 169 Ind Cas 169 (Nag) (N).

6. Though the judicial decisions are not unanimous on the question whether such a charge created by decree is a charge within the meaning of this section, one view being that a charge created by decree falls within S. 100 and another view being that a charge created by a decree is neither a charge created by act of parties nor a charge created by operation of law and is not included in this section because according to this view decrees stand on somewhat different footing and are governed by rules of their own, so that it may well be that the intention of the Legislature was to leave decrees out of this section, the latter view has been held in this Court in the following decisions: Sowbagia Ammal v. Manika Mudali, 22 Mad LT 386: 33 Mad LJ 601: (AIR 1918 Mad 668) (O); Venkataramanamurthi v. Sundararamiah 23 Mad LT 355: (AIR 1919 Mad 894) (P). It has been held in these cases that a charge created under a decree will not come under O. XXXIV, Rule 14, C. P. C, and hence could be enforced even in execution without filing a separate suit. In 23 Mad LT 355: (AIR 1919 Mad 894) (P) at p. 357 (of Mad LT): (at p. 896 of AIR), the learned Judges observe as follows:

"The learned Judges who decided 22 Mad LT 386: 33 Mad LJ 601: (AIR 1918 Mad 668) (O) remarked that the position of a widow, who by virtue of her maintenance decree for the first time acquires