KUTTIVENTI VENKATARAMANAMURTHI Vs. MACHERLA SUNDARA RAMIAH

JUDGEMENT

(1.) The first defendant obtained a decree for maintenance against defendants Nos. 2 to 5. By the decree a charge was created over certain immoveable property concerned in the present suit. In executing the decree the property which was subject to the charge was attached and sold for Rs 900. The plaintiff was the purchaser. He paid the purchase-money into Court, and the first defendant drew out Rs. 365-7 0 of it. On .3rd defendant s petition the sale was subsequently set aside on the 14th September 1908. The plaintiff applied for a refund of his purchase-money and obtained an order on 1st December 1908 that 1st defendant should within one month deposit in Court the money drawn out by her with interest at 6 per cent.

(2.) Subsequently in execution of that order he attached on 15th December 1908 1st defendant s maintenance decree. He applied to sell the property charged under the maintenance decree but his application was dismissed on 22nd April 1910, for what reason it is not clear, from the records before us. Finally he brought this suit in 1911 against defendants Nos. 1 to 5 to recover the purchase-money. In the plaint there is a prayer for sale of the debt of Rs. 607 due to 1st defendant from defendants Nos. 2 to 5. But the Courts below have treated this as a suit by the holder of a decree to enforce a charge and have passed decrees in the form prescribed by Order AXX1V, Rule. 4(1), Civil Procedure Code.

(3.) The points argued in second appeal are (1) whether the plaintiff s suit is maintainable in its present form; (2) whether the plaintiff is entitled to recover from defendants Nos. 2 to 5 the amount due to 1st defendant up to the date of his attachment of the maintenance decree or the amount due to her on the date when this suit was instituted.