K. JAGADEESA AYYAR Vs. BAVANAMBAL AMMAL

JUDGEMENT

(1.) THE fourth defendant, who is the appellant in this appeal) is a simple money decree -holder who has purchased door Nos. 17 and 18 in execution of his decree. He objects to their being sold under the charge decree for maintenance made in O.S. No. 39 of 1927. His contentions are four -fold and can be stated briefly as follows. The decree creating a charge is bad for want of registration if the charge is to be deemed as one brought into existence by the act of parties. The second point is that a prior order made on 23rd October, 1933, on an application by the judgment -debtor to stop the sale of houses bearing Nos. 18, 19, 20, 21 and 26 is res judicata against the contention raised by the charge decree -hoider. The third point taken is that Section 70 of the Transfer of Property Act which says that accession to the mortgaged property shall, in the absence of a contract to the contrary, enure to the benefit of the mortgagee does not apply to the present case because there could be no contract to the contrary in the case of a charge created by a decree of Court. Lastly, under the decree, what was charged were only the two houses then existing but not the site comprised within the boundaries specified in item 1 of the decree and consequently present door Nos. 18 and 19, which admittedly came into existence after the decree and were built upon the site not charged cannot be treated as accessions to the mortgaged property.

(2.) THERE is no substance either in the first or the last point. The charge created as the result of a compromise entered into between the parties in the maintenance suit has become embodied in the decree. No registration or attestation is therefore necessary.

(3.) COMING to the second point, the prior order is found at page 9 of the printed papers and is marked as Ex. D -4. It is indeed true, as found by the Subordinate Judge, that, though the question was raised that Nos. 18 and 19 along with Nos. 20 21 and 26 did not form part of the charge, there was no decision by the Subordinate Judge then to this effect as regards the numbers with which we are now concerned. He held in a general kind of way that, as the decree specified only two houses and as what was brought to sale were six houses, there was an attempt to sell what was prima facie in excess of the decree and that therefore the sale of the first item should be stopped. The question whether these items 18 and 19, could be said to have become affected by the charge decree and covered by it, which is the point now raised, was not then before the Court. It might well have been that the sale was stopped because items 20, 21 and 26 were held to be not comprised in the charge, just as it might have been that items 18 and 19 might not have been regarded as charged also. But in the absence of any decision covering the question that is now raised and dealing with the particular items which are not in dispute and having regard to what could only be regarded as a very prima facie view that was then taken by the Court as to what fell within the decree and what not, as superficial appearances went, I am not prepared to read this order as involving any final decision and attracting the bar of res judicata against the contention now raised by the charge decree -holder.