JUDGMENT
(1) The decree-holder in O.S. No. 445 of 1955 on the file of the District Munsif’s 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/- 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/-. 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:
“…. this Court doth order and decree that the 5th defendant do pay to the plaintiff the sum of Rs. 2500/- with interest on Rs. 2355-13-0 at 0-12-0 per cent per mensem from 26-7-55 date of suit to this date together with further interest at 6 per cent per annum on the aggregate amount adjudged from this date to the date of realization and do also pay to the said plaintiff Rs. 407-9-0 the costs of suit with interest thereon at 6 per cent per annum from this date till date of realization, that out of the above Rs.2500/- defendants 1 to 4 are liable to pay the said plaintiff to the extent of Rs. 1644-1-2 with interest thereon at 0-12-0 per cent per mensem from 26-7-55 date of suit to this date together with further interest at 6 per cent per annum on the aggregate amount advent per annum on the aggregate amount adjudged from this date to the date of realization and do also pay to the said plaintiff Rs.260/- the proportionate cost of suit with interest thereon at 6 per cent per annum from this date till date of realization.
It is further ordered and decreed that the plaint schedule property to stand charged for the amount decreed.”
To this, the plaint schedule is attached. Defendants 1 to 4 filed a petition in the District Munsif’s Court, Vijayawada under Ss. 47 and 151 C.P.C. against the decree-holder and the 5th judgment debtor alleging that the decree in this suit was only a money decree and that a charge on the schedule property was declared and so, in execution, the decree-holder is not entitled to sell the property charged under the money decree. Unless he brings the suit on the basis of the declaration of the charge in the decree under the provisions of Order 34, Rules 14 and 15 C.P.C., the charged properties cannot be sold in execution. Both the Courts below held that the decree declaring a charge did not create one. Therefore in the view of the lower Courts, the charged property cannot be sold unless a preliminary decree and a final decree were passed under Order 34 C.P.C. Hence, this second appeal is filed by the decree-holder.
(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, , 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.
(4) But, Mr. Venkatrama Sastry, the learned Counsel for the appellant argued that, on a proper construction of the decree, it has to be held that it is the decree that has, for the first time, created the charge, though in law, there might already by an existing statutory charge. Reliance is placed upon the language of the second clause in the decree which stated that it is further ordered and decreed that the plaint schedule property do stand charged for the amount decreed.
But this contention is opposed to the view taken by the Allahabad High Court in Manmohan Das v. Bahauddin, , wherein it was held that where the decree of a Court simply declares a charge on the property, but does not direct the sale of the property in enforcement of that claim, it is a declamatory decree for the enforcement of which a suit will have to be instituted and not a decree which is executable by itself. I also point out that the argument of Mr. Venkatarama Sastry that the decree in the present case for the first time creates a charge is also opposed to the view taken in 69 Mad LJ 854.
(5) Following the above decision, I am bound to dismiss this civil miscellaneous second appeal and I accordingly dismiss it, but without costs.
(6) This is a very unfortunate situation. If only some little care is taken by the Advocate, who drafted and filed the plaint and if he claimed a decree on the existing charge in terms of Order 34 C.P.C. , the decree-holder would not have been in this unfortunate predicament. Further, the Court, which granted the decree, could have noticed that, in cases where there is a pre-existing statutory charge, the proper decree to be passed is a preliminary decree for sale. This aspect also, I find, is invariably overlooked.
(7) Leave to appeal is granted.
(8)FJ/TVN/G.G.M.
(9) Appeal dismissed.
