VENUGOPALA SWAMI AND AAJANEYA SWAMI TEMPLES Vs. NARAYANA

JUDGEMENT

(1.) The executability of the decree obtained by the petitioner for recovery of the arrears of maktha due from the tenants by way of sale of the properties charged therefor, calls for decision in this revision petition, the execution coutt having held that the remedy of the petitioner is to obtain a final decree and bring the charged properties for sale thereafter. In support of the conclusion of the lower court, it relied upon the decision in Tiruvengalam vs. Ammanna. Sri Ramasarma, the learned Counsel for the petitioner, submits that in the case relied upon by the lower court there was a pre-existing statutory charge under Sec. 55 of the Transfer of Property Act, whereas in the instant case the charge was created by the court for the first time without reference to any pre-existing statutory charge. In my opinion the question raised is of considerable importance requiring decision by a Division Bench of this Court. Place the papers before the Hon'ble Chief Justice for appropriate orders. Pursuant to the above order of reference these petitions came on for hearing before the Division Bench and the Court delivered the following.

(2.) These two C.R.Ps. have come up by way of reference made by our brother Ramanujulu Naidu, J. The question of law involved in both the C.R.Ps. is common and can be disposed of by a common judgment.

(3.) In C.R.P. 2730/80 the decree holder obtained a decree for recovery of Rs. 4,592-77 towards the arrears of maktha against the defendant. The decree created a charge over 'B' schedule property for realisation of the decretal amount and an Execution Petition was filed for the reliefs of arrest of the judgment debtor, attachment of immovable property and sale of the charged property. In C.R.P. 4321/79 the decree holder filed the Execution Petition for the arrest of the judgment debtors and for attachment and sale of movable and immovable properties of the judgment debtors and also for sale of the charged properties. The decree holder-temple filed a suit for recovery of maktha and a decree was passed on 24-9-1963 creating a charge on the plaint 'B' and 'C' schedule properties for recovery of the said amount.