MADDALI TIRUVENGALAM Vs. SALADI AMMANNA

JUDGEMENT

(1.) The decree-holder in O.S. No. 445 of 1955 on the file of the District Munsifs Court, Vijayawada is the appellant in this second appeal, which arises in execution of that decree. The suit was filed by recover a sum of Rs. 2,500.00 being the Principal and interest due on a promissory note dated 16-11-46 executed by late S. Appayya, husband of the 1st defendant and father of defendants 2 and 3, as manager of the joint family defendants 1 to 3 and defendants 4 and 5 in favour of the plaintiff for Rs. 1800.00. It is admitted that the amount represent the unpaid purchase money due to the plaintiff in connection with the sale deed executed by him in favour of the defendants. That suit was decreed in the following terms:

(2.) For the appellant, reliance is placed upon the decision of the Madras High Court in Buchayya v. Sriramamma, AIR 1931 Mad 603(1) wherein it was held that where a decree creates a charge on the property in favour of a person such person is entitled to execute the decree without any further suit for sale of the property covered by the charge. The decree in that case is one for maintenance and the charge was created for the first time by the decree therefore, it follows that that decision does not really apply to the facts of the present case, which is one for recovery of unpaid purchase money for which there is a statutory charge under section 55 of the Transfer of Property Act. For the respondents, reliance is placed upon the decision in Ammanna v. Subbayya, 69 Mad LJ 854. That case arose out of a suit on a promissory note, which was executed by the defendants for unpaid purchase money due to the plaintiff in connection with a sale deed executed by him in favour of the defendants. A decree was given for the amount claimed against the defendants 1 and 3 and a charge was given on the properties set out in the schedule attached to the plaint. The learned Judges held that the decree in that case was not a decree for sale at all. It was a decree for payment of money and declared that the plaintiff had a charge on the scheduled property for unpaid purchase money. The learned Judges held that, in such a case, the decree-holder could not bring the property to sale without getting preliminary decree for sale under Order 34, C.P.C. They further pointed out that the decree did not create the charge, but merely declared it, i.e., declaring statutory charge. This decision is of a Bench and is binding upon me. The facts of that case are very similar to the facts of this case.

(3.) The learned Counsel for the appellant also relied upon a decision of the Full Bench of this Court in Raja Mommadevara v. Janardhana Krishna, 1959-2 Andh WR 105: (AIR 1959 Andh Pra 622), where it is pointed out that Section 100 of the Transfer of Property Act does not contemplate a charge provided by a decree for the first time. It applies only to cases where there is already a pre-existing charge. But, as pointed out already, the plaintiff in this case has a pre-existing statutory charge under Section 55 of the Transfer of Property Act and it is that charge that is referred to in the decree. In the present case, the charge is not created for the first time by the decree.