Case: Janapareddy Latchan Naidu Vs. Janapareddy Sanyasamma

1. The respondent who is the wife of the appellant obtained a decree for maintenance on August 9, 1949, by which the appellant was ordered to nay Rs. 3000 per year to her on the 28th day of February of every year with interest at 6 % per year if the payment was not made on the due date. The decree included ascertained amounts as arrears of past maintenance and other items to which detailed reference is not necessary in addition to the personal liability the decree created a charge for past and future maintenance on three lots of properties.2. The respondent filed execution petition No. 91 of 1952 for execution of the maintenance decree and sought to bring the properties charged by the decree to sale. She purchased two items of the properties for a sum of Rs. 20,200 subject to her maintenance charge after obtaining the permission of the Court. Later she filed execution petition No. 43 of 1955 seeking to bring to sale properties other than those purchased by her in the earlier execution. The appellant also filed an application under S. 47 of the Code of Civil Procedure to record full satisfaction of the decree on the ground that the respondent by purchasing the properties subject to her charge could not maintain a fresh application for the sale of the other properties. The subordinate Judge of Visakhapatnam upheld the contention of the appellant and dismissed the execution petition as not maintainable. The respondent appealed to the High Court. The High Court reversed the decision of the subordinate Judge and ordered the execution to proceed. The appellant has now appealed after obtaining special leave from this Court.

Reasoning: 4. The maintenance decree passed by the Subordinate Judge of Visakhapatnam is not only a declaratory decree but also an executory decree.The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amount cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirely to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there is a personal liability express or implied but in the case of charge there is not such personal liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties orbetween the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him.8. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which continued charged. The executing Court may, of course, sell only such items as may be sufficient to meet the present does under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express no opinion on the question whether the decree can be personally executed against the appellant because that question did not arise here.