SEETHARATNAM Vs. N NAGARAM

JUDGEMENT

(1.) In these two revision petitions, the common question that arises for decision is whether the charge created in the decree in O.S. No. 248/72, hereinafter called 'maintenance decree' gets precedence over the decrees in O.S. Nos. 140 & 141/71, herein after called 'specific performance decrees'. O.S. No. 246/72 was filed by the petitioners as indigent persons and that suit was decreed on 11-5-1972 creating a charge on the plaint sceedule properties herein. While so, the respondents herein filed two suite, O.S. Nos. 140 and 141 of 1971 respectively seeking specific performance of the contract of Sale and alternatively for refund of the earnest money paid and also for creating a charge on the properties, the subject matter of the contract. Preliminary decree for refund of earnest money only was granted on 20-4-1979 and final decrees were also passed on 6-9-77. The relief for specific performance was negatived. In the preliminary decrees as prayed for, a charge was also created on the properties, the subject matter of the contract. The same property is the subject matter of the charge in both sets of decrees.

(2.) When the respondents laid the execution and seeking to bring the properties to sale, the petitioners herein filed their objections, contending inter alia, that their maintenance decree creating a charge on the very same properties is entitled to precedence over the spcific performance decrees to realise their decree debt and contended that the property shall be brought to sale only subject to the charge in their favour. The lower court did not accept the contention. It held that the charge created in favour of the respondents is a statutory charge and that it is entitled to priority over the Charge-decree granted in favour of the petitioners. But however, to be fair to all concerned, it was ordered that it should be notified in the sale proclamation to that effect. As against this order, the above C.R. Ps. have been filed.

(3.) Sri, Manohar, learned counsel for the petitioners contended that the charge created in O.S.Nos. 140& 141/71 is not a suit for enforcement of a statutory charge but a mere suit for specific performance or in the alterahative for refund of the earnest money received under the contract of sale and a relief for creation of charge was sought for. Under these circumstances, the respondents are not entitled to a precedence over the maintenance decree creating a charge in O.S.No. 248/72. Therefore the lower court is not correct in holding that the charge in O.S.Nos. 140 and 141/71 is a statutory charge and entitled to priority.