NAGASURI SUBBA RAO Vs. NAGASURI KAMESWARAMMA

JUDGEMENT

(1.) C.R.P. No. 1619/98 is filed by the revision petitioner-wife aggrieved by an order dated 12-9-1997 passed in E.P. No. 48/96 in O.S. No. 23/84 on the file of the Subordinate Judge, Addanki. C.R.P. No. 4782/97 is filed by the revision petitioner-husband aggrieved by an order dated 12-9-1997 passed in E.P. No. 17/91 in O.S. No. 23/84 on the file of the Subordinate Judge, Addanki. Since, both the revision petitions are inter-connected, they are being disposed of by a common order.

(2.) The facts in brief are as follows : The revision petitioner-wife in C.R.P. No. 1619/98 filed E.P. No. 48/96 in O.S. No. 23/84 on the file of the Subordinate Judge, Addanki along with her daughter for execution seeking relief of realisation of the E. P. amount by way of attachment of the amount of Rs. 1,41,612/- lying in the Court deposit, which represents the surplus sale proceeds realised by sale of the charged property. The revision petitioner-husband in C.R.P. No. 4782/97 filed E.A. No. 83/96 in E.P. No. 17/91 in O.S. No. 23/84 on the file of the Subordinate Judge, Addanki, praying the relief of issuance of cheque for Rs. 1,41,612/-. For the purpose of convenience, the wife will be referred to as decree-holder and the husband will be referred to as judgment-debtor.

(3.) The contention of the decree-holder is that she filed a suit in O.S. No. 23/84 against the judgment-debtor for the relief of maintenance and the said suit was decreed on 28-12-1984 creating charge over the suit schedule property and she had filed E.P. No. 17/91 for recovery of arrears of maintenance and in the said E.P. the charged property was sold in Court auction and the surplus sale proceeds were deposited into Court and thus, she is entitled to recover her arrears of maintenance from the said surplus sale proceeds lying in Court deposit and that her charge over the suit schedule property had been extinguished in view of the sale held in E.P. No. 17/91 and hence, the stand taken by the decree-holder was that from out of the surplus sale proceeds lying in Court deposit, she is entitled to recover the amount. The judgment-debtor had taken a stand that the decree-holder is not entitled to seek attachment of the surplus sale proceeds lying in Court deposit and the remedy available to the decree-holder is to bring the decree schedule property for sale if the auction-purchaser does not pay the arrears of maintenance and the contention that the charge over the property got extinguished cannot be sustained. The Court below after detailed discussion and placing reliance on Annapragada Venkata Lakshmi Ramanam-ma v. Annapragada Sitaramanjaneya Sarma, 1977 (2) APLJ 136, had arrived at a conclusion that the charge created in the suit schedule property does not extinguish in spite of its sale in Court auction for realisation of the arrears of maintenance due to the decree-holder and it continues, and as such the only remedy available to the decree-holder is to proceed against the charged property being in the hands of the auction- purchaser. The Court below also had expressed the view that the decree-holder cannot lay any claim over the surplus sale proceeds lying in the Court and the only remedy of the decree-holder to satisfy the future arrears of maintenance will be to proceed against the charged property lying in the hands of the auction-purchaser and ultimately, the Court below came to the conclusion that the E.P. filed by the decree-holder is liable to be dismissed and accordingly, the same was dismissed and aggrieved by the same, the wife had preferred C.R.P. No. 1619/98 on the ground that the judgment-debtor has no right to claim the surplus sale proceeds lying in Court deposit on certain irrelevant grounds.