IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/11/2003
CORAM
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN
C.M.S.A.No.34 of 1994
1. Rajathi Ammal
2. Lalitha .. Appellants
-Vs-
1. Annalakshmi
2. Sornamani .. Respondents
PRAYER: Against the fair and decreetal order of the Court of the
Subordinate Judge, Periyakulam made in C.M.A.No.4 of 1990, dated 20.4.199 3
preferred against the fair and decreetal orders of the Court of the District
Munsif, Uthamapalayam in O.S.E.A.No.115 of 1986 in O.S.E.P.No.931 of 1985 in
O.S.No.297 of 1974, dated 21.11.1986.
!For Appellants : Mr.R.Nandakumar
^For Respondents: No appearance
:JUDGMENT
The appellants 1 and 2 are the wife and daughter of the second
respondent respectively. The appellants are the plaintiffs in the suit
O.S.No.297 of 1974 before the District Munsif Court, Uthamapalayam laid for
maintenance against the second respondent/husband and the said suit was
decreed and charge was also created and half share of the property of the
second respondent was attached, which half share was also attached in
E.P.No.260 of 1974 to execute the decree in O.S.No.1130 of 1970 on the file of
the District Munsif, Periyakulam laid by one Shanmugavelu, even before the
charge was created by the appellants on 24.6.1994 in O.S.No.297 of 1974.
2. In view of the above admitted fact that the charge created on
24.6.1974 in O.S.No.297 of 1974 is subject to the order of attachment in
E.P.No.260 of 1974 in O.S.No.1130 of 1970 laid by one Shanmugavelu, the
application E.A.No.115 of 1986 filed by the first respondent under Order 21
Rule 58 of the Code of Civil Procedure was allowed and the attachment effected
by the appellants was raised and the same was also confirmed by the learned
Subordinate Judge, Periyakulam in C.M.A. No.4 of 1990. Hence, this civil
miscellaneous second appeal.
3. This appeal was admitted on the following substantial questions of
law:
“Whether a charge created in a maintenance decree over a property can be
considered as an absolute transfer of title?”
4. Concededly, the half share of the second respondent in the
property in question was attached by the decree holder in O.S.No.1130 of 19 70
as early as on 21.8.1973 itself. On the other hand, charge was created on the
decree obtained by the appellants herein only on 24.6.19 74. Therefore, the
said charge is only subject to the attachment dated 21.8.1973 obtained by one
Shanmugavel. It is pursuant to the said order of attachment dated 21.8.1973,
the half share of the second respondent was sold in the court auction.
Therefore, assuming the charge was created on 24.6.1974 in O.S.No.297 of 1974
in favour of the appellants, the said charge is only subject to the order of
attachment dated 21.8.1973 in O.S.No.1130 of 1970 filed by Shanmugavel.
5. In that view of the matter, the charge created on 24.6.1974 in
O.S.No.279 of 1974 on the file of the District Munsif Court, Uthamapalayam, by
itself, will not create any substantial right nor could be considered as an
absolute transfer of title to the appellants. Hence, in my considered
opinion, both the courts below are right in
holding that the first respondent is entitled for the claim over the half
share of the second respondent, which was, admittedly, purchased by the first
respondent pursuant to the execution of the decree in O.S.No.1130 of 1970.
In the result, answering the substantial question of law against the
appellants, this appeal is dismissed. No costs.
Index :Yes
Internet:Yes
sasi
To:
1. The Subordinate Judge
Periyakulam (With Records)
2. The District Munsif
Uthamapalayam (With Records)
3. The Section Officer
VR Section, High Court
Madras.