SURAVARAPU SARRAJU Vs. NIDADAVOLU VENKATRAJU AND ANR.

JUDGEMENT

(1.) ON 9th October 1933 the second Respondent obtained a decree for maintenance against the father of the Appellant, the amount of maintenance being -charged upon property owned by him. The payment was not made as directed and consequently the second Respondent was forced to take proceedings in execution against the Appellant. On 13th August 1943 the Appellant's property was sold, to the first Respondent in accordance with the order of the Court. The Appellant filed an application under Order XXI, Rule 90, of the Code of Civil Procedure, but it became infructuous as he failed to make the required deposit. On 13th October 1943 he deposited the amount for which the property was sold together with five per cent on that amount. This he purported to do under Order XXXIV, Rule 5(1), treating the maintenance decree as being a preliminary decree passed in a mortgage suit. The District Munsif held that Order XXXIV, Rule 5, did not apply and dismissed the Appellant's application. On appeal the Subordinate Judge held that Order XXXIV, Rule 5, did apply. The auction purchaser then appealed to this Court. His appeal was heard by Bell J. who agreed with the District Munsif, but gave leave for filing the present appeal under Clause 15 of the Letters Patent.

(2.) WE consider that the judgment under appeal is right. A decree passed in a suit for maintenance is a final decree which entitles the decree -holder to proceed directly in execution should the judgment -debtor fail to pay the amount due by him. Sub -rule 1 of Order XXXIV, Rule 5, allows a payment into Court to be operative only when it is made on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under Sub -Rule 3. Sub -rule 3 says that, where payment in accordance with Sub -rule 1 has not been made, the Court shall, on application made by the Plaintiff in this behalf and after notice to all the parties, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in Sub -rule 1 of Rule 4. Rule 5 cannot have any application to a decree passed in a maintenance suit, which in its terms is final.