K JAGADEESA AYYAR Vs. BAVANAMBAL AMMAL

JUDGEMENT

(1.) The fourth defendant, who is the appellant in this appeal) is a simple money decree-holder who has purchased door Nos. 17 and 18 in execution of his decree. He objects to their being sold under the charge decree for maintenance made in O.S. No. 39 of 1927. His contentions are four-fold and can be stated briefly as follows. The decree creating a charge is bad for want of registration if the charge is to be deemed as one brought into existence by the act of parties. The second point is that a prior order made on 23 October, 1933, on an application by the judgment-debtor to stop the sale of houses bearing Nos. 18, 19, 20, 21 and 26 is res judicata against the contention raised by the charge decree-hoider. The third point taken is that Section 70 of the Transfer of Property Act which says that accession to the mortgaged property shall, in the absence of a contract to the contrary, enure to the benefit of the mortgagee does not apply to the present case because there could be no contract to the contrary in the case of a charge created by a decree of Court. Lastly, under the decree, what was charged were only the two houses then existing but not the site comprised within the boundaries specified in item 1 of the decree and consequently present door Nos. 18 and 19, which admittedly came into existence after the decree and were built upon the site not charged cannot be treated as accessions to the mortgaged property.

(2.) There is no substance either in the first or the last point. The charge created as the result of a compromise entered into between the parties in the maintenance suit has become embodied in the decree. No registration or attestation is therefore necessary.

(3.) A reading of the Tamil description of the schedule of property as given in the counter statement filed by the respondent satisfies me that it was not merely the two superstructures that were charged but also the site comprised within the boundaries specified. Reference was made to the difference in the description of item 2 where the property sought to be charged is separately mentioned as " the ground and the thatched house." The reason for the distinction is apparent. The second item was a thatched house and it might well have been contended if that alone had been mentioned without the site that the thatched house alone was intended as security. Such considerations do not apply to what may be called pucca buildings erected on sites belonging to the mortgagor, especially when there wa"S no reason for thinking that any reservation of the site was intended or contemplated.