BELA DIBYA Vs. RAMKISHORE MOHANTY

JUDGEMENT

(1.) ONE Kashinath Tiadi had two sons, Hrudananda and Rama. Bela Dibya (decreeholder)is the widow of Kama. She brought Title Suit No. 234 of 1948 in the Court of the Munsif, Kendrapara, for maintenance against her husband's son as Rama ied in joint status and the entire joint family property devolved upon hrudananda's branch. The suit was decreed and a charge was created in her favour in respect of the disputed property and other properties (Lots 1 to 4 ). In execution Case No. 127 of 1959 Lot No, 1 was put to auction sale for Rs. 87-55 paise. In the proclamation for sale the charge on Lot No. 1 was not mentioned. On 16-11-59 Rajkishore Mohanty (auction-purchaser-respondent) purchased lot, No. 1 in auction sale for Rs. 200/ -. The decree-holder (appellant) withdrew her decretal dues with costs. The sale was confirmed on 23-12-59 and the sale certificate was issued on 22-1-60. Respondent took delivery of possession on 10-4-60. The decree-holder again started Execution case No. 77/62 for Rs. 144/- and for costs against the previous judgment-debtors and the respondent. She advertised for sale all the lots of properties including lot no. 1, Respondent filed an objection Under Section 47, C. P. C. on 13-4-63 in misc. Case No. 81/63. On 6-9-63 lot No. 3 (the disputed properly) was released from attachment and sale. Misc. Appeal No. 177/63 was filed by the decree-holder. The learned District Judge, Cut-tack, dismissed it. Against the appellate order this miscellaneous appeal has been filed by the decree-holder.

(2.) MR. Pal raised the following contentions :

(3.) THE first question for consideration is whether the charge on lot No. 1 created under the maintenance decree passed on contest comes within the arnbit of section 100 of the Act. The section runs thus--Section 100. Charges. Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transanc-tion does not amount to a mortgage, the latter person is said to have a charge on the properly; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any person in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.