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1962 Supreme(Mad) 8
IN THE HIGH COURT OF MADRAS
Ramakrishnan, J.
Tirugnana Sambanda Mudaliar
Vs.
Meenakshi Ammal and Ors.
Second Appeal No. 1179 of 1959
Decided On: 05.01.1962
For Appellant/Petitioner/Plaintiff: R. Sundaravaradan, Adv.
For Respondents/Defendant: P.C. Parthasarthy and P. Parthasarthy, Advs.
A suit for declaration and possession of property subject to a charge for maintenance is barred under Section 47, C. P. C., if the plaintiff is a decree-holder and the first defendant is a representative of the judgment-debtor.
Headnote:
MAINTENANCE DECREE - CHARGE ON PROPERTY - SALE OF PROPERTY SUBJECT TO CHARGE - OMISSION TO MENTION CHARGE IN SALE PROCLAMATION - EFFECT - WAIVER - ESTOPPEL - SUIT FOR DECLARATION AND POSSESSION - MAINTAINABILITY - SECTION 47, C. P. C.
Fact of the Case:
Plaintiff obtained a decree for maintenance against defendants 2 to 4 and their brothers, and father, in O. S. No. 8 of 1945. The maintenance decree imposed a charge on the one-third undivided share in two Items comprised in the schedule to the plaint in the present suit and also another item. The plaintiff brought the plaint schedule properties to sale for arrears of maintenance accrued due in 1951. In the court auction sale, the first defendant who is the father-in-law of the second defendant, purchased the suit properties and the sale was confirmed on 12-8-53. For the arrears of maintenance which fell due In September 1953 and March-September 1954 the plaintiff again filed another E. P. in 1953, brought the suit properties to sale, purchased them in court auction and the sale was confirmed in June 1955. The plaintiff filed the present suit on 4-10-1956. In the plaint as originally framed the prayer was for declaration of the plaintiffs title to the suit properties and for recovery or possession of the entirety of the suit properties.
Finding of the Court:
The trial court held that the suit was barred under Section 47, C. P. C. and that the remedy of the plaintiff was to file an appeal from the order of the Sub-ordinate Judge. The appellate court found that the purchase by the first defendant was subject to future maintenance claimed due to the plaintiff and that such maintenance claim was a recurring charge on the property. The appellate court partly allowed the appeal, and after setting aside the decree of the trial court, granted a declaration in favour of the plaintiff that she was entitled to enforce her claim against the first defendant, in respect of the suit properties which he had purchased, and which were the subject-matter of the charge in favour of the plaintiff, and that it will be open to the first defendant to pay the recurring future maintenance to the plaintiff and satisfy her claim.
Issues: 1. Whether the suit is barred under Section 47, C. P. C.? 2. Whether the first defendant had purchased the suit properties free of the plaintiff's claim for maintenance as a charge? 3. Whether the relief granted by the lower appellate court by way of declaration, and the liability of the property for future maintenance, fell outside the scope of the relief which the plaintiff had sought in the plaint?
Ratio Decidendi: 1. A decree-holder auction purchaser continues to be decree-holder and proceedings at her instance for delivery of possession must be deemed to relate to the execution, or discharge or satisfaction of the decree within the meaning of Section 47 C, P. C. 2. The omission to mention the existence of the charge for future maintenance in the sale proclamation on the first execution petition, wherein the first defendant bought the property, does not amount to waiver of the right to future maintenance or estoppel against claiming such future right. 3. The frame of the plaintiff's suit is defective. If the relief is viewed as one for declaration and possession, the plaintiff has ignored the fact that her title is restricted to one third share, in which case, she should have sued for partition and possession. If the relief is viewed as one for a declaration setting aside the summary order, she should have sued for the consequential relief of partition and possession.
Final Decision: The appeal is allowed, the decree of the lower appellate court is set aside and the decree or the trial court is restored. In the circumstances there will be no order as to costs.
Ramakrishnan, J.
1. The first defendant in O. S. No. 70 of 1957 on the file of the District Munsif's Court, Chingiepur, is the appellant herein. The prior facts necessary for a consideration of this appeal are briefly the following.
2. The plaintiff, Meenakshi Ammal, obtained a decree for maintenance against defendants 2 to 4 and their brothers, and father, in O. S. No. 8 of 1945 on the file of the Sub-Court, Chingleput. The maintenance decree imposed a charge on the one-third undivided share in two Items comprised in the schedule to the plaint in the present suit and also another item, 372/2, 4 acres and 30 cents in extent. The plaintiff brought the plaint schedule properties to sale for arrears of maintenance accrued due in 1951. In the court auction sale, the first defendant who is the father-in-law of the second defendant, purchased the suit properties and the sale was confirmed on 12-8-53. It is common ground that in the sale proclamation, there was no specific reference that the properties ware subject to charge for arrears of future maintenance. For the arrears of maintenance which fell due In September 1953 and March-September 1954 the plaintiff again filed another E. P. in 1953, brought the suit properties to sale, purchased them in court auction and the sale was confirmed in June 1955. It is common ground that in this execution petition the plaintiff did not make the first defendant a party. When she went to take delivery she was obstructed by the first defendant. She filed a petition for removal of the obstruction but it was dismissed. This was on 12-6-1958. The plaintitt filed the present suit on 4-10-1956. In the plaint as originally framed the prayer was for declaration of the plaintiffs title to the suit properties and for recovery or possession of the entirety of the suit properties. The plaintiff also alleged the 1st defendant was a nominal purchaser for the other defendants. She subsequently amended the plaint and the prayer after the amendment was for setting aside the summary order of the Subordinate Judge in the execution proceedings above mentioned.
3. The first defendant pleaded that he did not know about the charge for maintenance at the time when he purchased the property. Since the plaintiff did not mention about the existence of this charge in the sale proclamation it must be assumed that she had waived the charge. The sale in favour of the plaintiff will not be valid and binding because the first defendant was not impleaded as a party in the subsequent execution petition. In any event, the dispute related to a matter pertaining to execution and the plaintiff's remedy was to file an appeal against the order of the learned Subordinate Judge and an independent suit was not maintainable.
4 . Defendants 2 to 5 filed a separate written statement and after adopting some of the contentions of the first defendant they pleaded that after the sale in favour of the first defendant, they had no longer any interest in the properties.
5. The learned District Munsif held that the suit was barred under Section 47, C. P. C. and that the remedy of the plaintiff was to file an appeal from the order of the Sub-ordinate Judge. He also observed that in essence the plaintiff asked for a declaration and possession, whereas the relief should have been only to set aside the summary order. He also observed that the plaintiff's relief, in any event, would be only to ask for partition of one-third share In the property which alone was the subject of the charge for maintenance. The learned District Munsif was also inclined to hold that the plaintiff was not estopped from claiming any right to the property by her conduct and representation at the time of the first execution sale. The trial court found that the main defect in the plaintiffs ease was her failure to implead the first defendant in the second execution petition and, therefore, she could not claim any relief as against the first defendant, by virtue of her purchase
