TIRUGNANA SAMBANDA MUDALIAR Vs. MEENAKSHI AMMAL

JUDGEMENT

(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.