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2023 Supreme(Mad) 901
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ABDUL QUDDHOSE, J.
Pappa & Anr. - Appellants
Versus
Padmanabhan - Respondent
S.A.(MD). No. 215 of 2017 & C.M.P.(MD). No. 4338 of 2017
Decided On : 06-04-2023
For the Appellants:T. Selvakumaran, Advocate. For the Respondent:A.R. Sethupathy, Advocate.
Attachment can only be sought in execution proceedings after obtaining a maintenance decree in a maintenance suit.
Headnote:
Attachment - Maintenance Suit - O.S.No.450 of 2005 - Section 100 of CPC - 22.01.2008, 29.10.2009
Fact of the Case:
The appellants filed a suit seeking maintenance and attachment of the defendant's property. The Trial Court granted the relief of maintenance and attachment, which was partly upheld by the Lower Appellate Court. The appellants challenged the setting aside of the attachment in this Second Appeal.
Finding of the Court:
The Lower Appellate Court rightly set aside the attachment order, stating that the attachment can only be sought in execution proceedings after obtaining a maintenance decree. It was also noted that the subject property had been sold to a third party by the defendant.
Issues: The main issue was the validity of the attachment order granted by the Trial Court in the suit for maintenance.
Ratio Decidendi: A charge cannot be created over a property in a maintenance suit, and attachment can only be sought in execution proceedings after obtaining a maintenance decree.
Final Decision: The Second Appeal was dismissed, granting liberty to the appellants to execute the judgment and decree of the Lower Appellate Court by filing an execution petition. No costs were awarded.
JUDGMENT
(Prayer: Second Appeal is filed under Section 100 of CPC to set aside the judgment and decree dated 29.10.2009 made in A.S.No.3 of 2009 on the file of the 2nd Additional Sub Court, Nagercoil, insofar as the setting aside and modification of order of attachment of suit schedule properties in O.S.No.450 of 2005 on the file of the 1st Additional District Munsif Court, Nagercoil, dated 22.01.2008.)
1. This Second Appeal has been filed challenging the judgment and decree of the Lower Appellate Court, namely, the II Additional Sub Court, Nagercoil in A.S.No.3 of 2009 dated 29.10.2009. The appellants are the plaintiffs in the suit O.S.No.450 of 2005 on the file of the I Additional District Munsif Court, Nagercoil. The first appellant is the mother and the second appellant is her daughter. The respondent is the defendant in the suit and is the husband of the first appellant/first plaintiff.
2. The suit was filed by the appellants/plaintiffs seeking for maintenance from the respondent/defendant, who is the husband of the first appellant. The Trial Court decreed the suit in favour of the appellants/plaintiffs by granting the relief of maintenance as well as granted attachment of the suit schedule property by its judgment and decree dated 22.01.2008 and the said judgment and decree was passed by the I Additional District Munsif Court, Nagercoil in O.S.No.450 of 2005. Aggrieved by the same, the respondent/defendant filed a first appeal before the II Additional Sub Court, Nagercoil in A.S.No.3 of 2009. The Lower Appellate Court partly allowed the first appeal in A.S.No.3 of 2009 filed by the defendant by upholding the relief of maintenance granted by the Trial Court, but by reversing the finding of the Trial Court with regard to the attachment of the suit schedule property. The Lower Appellate Court has raised the attachment granted by the Trial Court by the impugned judgment and decree dated 29.10.2009. Aggrieved by the raising of the attachment, the plaintiffs in the suit have filed this Second Appeal. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.
3. This Court on 02.06.2017 admitted the Second Appeal by formulating the following substantial question of law:
"Whether the judgment of the First Appellate Court setting aside the decree of the trial Court creating a charge over the property is sustainable in law?”
4. Admittedly, the main relief sought for by the plaintiffs against the defendant is for maintenance. The relief of attachment of the defendant''s property can be sought for only if the plaintiffs are able to get a decree in their favour in respect of the maintenance amount and it can be sought for only in the execution proceedings. However, the plaintiffs have chosen to file a suit for recovery of maintenance as well as for attachment of the property owned by the defendant. The Trial Court, namely, the I Additional District Munsif Court, Nagercoil, by its judgment and decree dated 22.01.2008 in O.S.No.450 of 2005, has erroneously granted the relief of attachment in the suit itself, though the said relief can be sought for by the plaintiffs only in an execution petition.
5. The Lower Appellate Court, namely, the II Additional Sub Court, Nagercoil by its judgment and decree dated 29.10.2009 passed in A.S.No.3 of 2009, has rightly set aside the attachment order passed by the I Additional District Munsif Court, Nagercoil in its judgment and decree dated 22.01.2008 in O.S.No.450 of 2005. The Lower Appellate Court has also observed in the impugned judgment and decree that the suit schedule property is not belonging to the defendant, while reversing the finding of the Trial Court that the plaintiffs are entitled for an attachment order.
6. It is also brought to the notice of this Court by the learned counsel for the appellants that the subject property has already been sold to a third party by the defendant and on that score, the learned counsel for the appellants su
