1. This is a Revision by the Judgment-debtor (Jdr) No. 8 against the order dated 19-6-1978 passed by the Prl. Munsiff, Bijapur, in Ex. Case No. 24/76 over-ruling his objections.
2. The decree-holder Lingawwa (Respondent No. 1 here-in) had obtained a decree for maintenance against the other Jdrs. Not only the property in question but also other properties belonging to Jdrs. 1 to 7 were charged with the decree-holder's right of maintenance. The decree-holder had sued out an execution in in Ex. Case No- 105/69 for the recovery of maintenance arrears to the tune ofRs. 2107/-and brought the property to sale in that execution. In the course of the said execution,Sy. No. 110 was attached and sale proclamation was issued. Jdr. No. 8 i. e., the present Revision Petitioner offered the highest bid of Rs. 4020/ - and the bid was knocked down in his name. A sale certificate was also issued in his name. The decree-holderLingawwa took away the amount due to her out of the sale proceeds and the remaining amount was withdrawn by defendant No. 1. Again the maintenance arrears fell due. She filed the present execution and prayed that the very property Sy. No. 110, which was. sold in the previous execution and which was purchased by the Jdr. No. 8 in the Court auction sale, should be brought to sale in order to recover her maintenance dues.
3. Jdr. No. 8 contended that the sale proclamation issued in execution No. 105/69 did not mention that the Sy. No. 110 was charged with decree holder's right of maintenance and that he bona fide purchased Sy. No. 110 in the Court auction sale for valuable consideration and without notice of the charge.
4. The Munsiff followed the decisions in Sivagangai Animal -v.- Jagadanibal, A.I.R. 1976 Madras 126 Govinda Menon -v.- Basheer Ahmed Sayeed, A.I.R. 1956 Madras 67 and Tirgnana Sambada Mudaliar -v.- Meenakshi Animal, : AIR1963Mad144 and held that it was not necessary to mention about the charge in the sale proclamation and that the purchase by the auction purchaser would be always subject to the charge of maintenance and that the decree-holder can go onbringing the very same property to sale in all the execution cases till she continued to be alive.
5.When the matter had come up on the last occasion for hearing, I had asked the Learned Counsel Bannurmath, appearing for Jdr. No. 8, to make an exhaustive study of the legal position. To-day he addressed the argument in great detail, placing, rulings for and against the proposition of law put forth by him. The Court appreciates the candid exposition of law made by him in the matter. He relied on S. 100 of the Transfer of Property Act, which reads as :
'100. Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions herein-before contained which apply to a simple mortgage shall, so far as may be, apply to such a charge.
Nothing in this Section applies to the charge of 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 property in the hands of a person to whom such a property has been transferred for consideration and without notice of the charge.'
He contended that the principle laid down in Section 100 would also apply to the auction purchase. He placed before me Laxmi Devi -v.- Sethani Mukand Kanwar & Two others, A.I.R. 1963 S.C. 834. It is held therein as :
'It cannot be reasonably assumed as a matter of law that in every case where a charge has become enforceable against an auction-purchaser by reason of the fact that it was not shown in the proclamation preceding the auction sale, it follows that the charge - holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial , must depend upon several relevant facts. How many proper ties have been sold at the auction sale ; how many out of them were the subject-matter of the charge ; what is the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these and other relevant matters must be considered before deciding whether or not the injury suffered by the charge-holder is substantial.'
The Supreme Court further stated in para No. 17 as :
'This question has been considered by our High Courts on several occasions, and, on the whole, the majority view appears to be in favour of the conclusion which we have just indicated.'
The Supreme Court further held that this question was refer-red to a Full Bench of the Allahabad High Court because there appeared to be a conflict between the different benches of the said Court on this point. It further stated :
'In the first decision , the Allahabad High Court had taken the view that auction sale does not fall within the purview of the latter part of Section 100, while in the latter case, a contrary view had been accepted. The Full Beach preferred that latter view to the former. Since this Full Benchdecision was pronounced in the Allahabad High Court, Auction purchases have been consistently held to fall under the latter part Section 100. It has been held by the Full Bench that when the relevant Clause in the latter part of Section 100, speaks of any property in the hand of person to whom such property has been transferred, the concept of transfer is wide enough to include transfers effectuated by acts of parties as well as transfers effected by operation of law. The same view has been accepted by the Patna High Court in R. L. Naoadkeolvar -v.-Sultan Jehan, I.L.R. (1952) 31 Pat. 722 and by the Punjab High Court in MANNA SINGH ALLAH SING -v.- WASTI RAM SARAF AND OTHERS, . '
6. The said Supreme Court decision was in regard to an application under Order 21, Rule 90 which requires that the Jdr., should show that a substantial injury had been caused to him on account of the material irregularity in the issue of the sale proclamation or on account of the non-mentioning of material circumstances in the sale proclamation. But, one thing becomes clear from the said Supreme Court decision that when it is not mentioned in the sale proclamation about the charge of maintenance, the sale of the property in the Court auction would result in substantial injury to the party concerned. Thus, it appears to me that a Court auction purchaser cannot avoid the charge of maintenance on the property on the ground that it was not mentioned in the saleproclamation. He then relied on Indrani -v.- Maharaj Narain & others, A.I.R. 1937 Oudh 217 in the said case it is held :
'There is no difference in principle between a charge created by a decree and one created by contract.A charge in either cases creates no interest inthe property and it is in this respect that it differs from a mortgage.
The amendment of Section 100 T.P. Act, by Act 20 of 1929 was made with a view to making the intention of the Section as it then stood clearer and not with a view to altering what was already the law on the subject.
Where therefore a particular right is charged on specific immoveable property by a decree of the Court, such a right cannot be enforced against a subsequent transferee for valuable consideration and without notice of the charge. This principle applies also in cases where a charge is created before the amendment of Section 100 of the Act.'
He then relied on Basumati Kuer -v.- Harbansi Kuer & another, A.I.R. 1941 Patna 93 which lays down :
'Where a particular right is charged on specific immovable property by a decree of Court, such right cannot be enforced against a subsequent transferee for valuable consideration and without notice of the charge.'
The said Patna decision clearly states :
'A compromise decree made a precision for the realisation of future maintenance by sale of the property specified and created a charge upon that property for the purpose specified. The property was sold in execution of decree :
HELD that the decree for future maintenance could be executed against the auction-purchaser as representative of the judgment-debtor to the extent of the property purchased by him.'
He then relied on Rajkishore Lall & Others -v.- Begum Sultan Jehan and Others, : AIR1953Pat58 which lays down :
'The expression' transferred for consideration in 100 is wide enough to include an auction sale in execution of a decree.
A bonafide auction-purchaser at the sale in execution of the decree without notice to an equitable charge is not bound by any equitable right or claim upon the property, binding on the judgment-debtor.'
He then relied on Munna Singh Allah Singh -v.- Wasti Ram Saraf & others, which lays down :
'Reading Ss.2(d), 5 and 100, the expression 'transferred' in S 100 is used in a wider sense and includes both a transfer by act of parties and a transfer by operation of law or by or in execution of a decree.
It may be that the Madras decisions viz. : AIR1967Mad126 , A.I.R. 1956 Madras 67 and : AIR1963Mad144 did not consider the effect of latter portion of Section 100 of the Transfer of Property Act. But in the said decisions it was held that in the case of a decree for maintenance charged on specific properties, the decree-holder is entitled to proceed against any of the properties though it might have been purchased by the auction purchaser without notice of the charge'.
7. In execution case No. 105/69, in which the revision petitioner purchased the property, the property in question was brought to sale to recover the arrears of maintenance due to her as per the maintenance decree obtained by her. Any prudent purchaser would make inquiries as to why and for what purpose, the property is brought to sale. It would not be unreasonable to expect in such cases that the auction purchaser should look into the decree in the execution of which the property is brought to sale. Even if bona fide inquiries had been made slightly, he would have come to know that the property was brought to sale to recover arrears of maintenance and that the property brought to sale had been charged with the maintenance of the decree-holder. It is not the case of the revision petitioner (Jdr No. 8) that he made any such inquiries, much less bona fide. Therefore, in my opinion, it cannot be said that he was a bona fide purchaser for value without notice of the charge.
8. Even assuming for a moment that the latter portion of Section 100 of the T. P. Act would also govern an auction purchaser, still it remains to be considered whether an auction purchaser can resist the execution of the decree on the ground that he is a bona fide purchaser for value without notice of the charge.
9. This would depend upon the question as to what would pass to an auction purchaser in a Court auction sale. A useful reference can be made to the commentary on the C.P.C. by Mulla, 13th edition pages 1201 and 1202. It reads as :
'AS regards private sales, there is in the absence of a contract to the contrary an implied covenant for title by the vendor as provided by the Transfer of Property Act, 1882, Section 55,sub-section (2). But as regards sale under a decree of the Court, there is no warranty of title either by the decree-holder or by the Court. Rule 13 of this Order shows that the decree-holder, when applying for execution has only to specify the judgment-debtor's share or interest in the property 'to the best of his belief . ' and 'so far as he has been able to ascertain the same.' Rule 66 shows that the proclamation only professes to specify the particularsprescribed by that rule including the property to be sold and the judgment-debtor's interest therein 'as fairly and accurately as possible.' Hence what passes to a purchaser at a Court-sale is the 'right, title and interest' of the judgment-debtor, whatever that interest may be. In other words, a purchaser at a Court-sale buys the property with all risks and all defects in the judgment-debtor's title except where it is found that the judgment-debtor had no saleable interest at all. In the latter case, the purchaser may apply to have the sale set aside underRule 91 of this Order and he may then apply under Rule 93 for a return of the purchase money. Where the decree is against a limited owner, what passes would depend on the character of the decree, i.e., if it is against the estate or limited owner personally.'
He has, further, said at page 1202 :
'It has been stated above that what passes to a purchaser at a court-sale in execution of a money-decree is the 'right, title and interest' of the Judgment-debtor in the property sold. To determine the nature and extent of the judgment-debtors' right, title and interest in the property sold, the test is as stated by Lord Watson in the course of the argument in Pettachi Chettiar v. Chinna Thambiar, what did the Court intend to sell, and what did the purchaser understand that he bought These are questions of fact or rather of mixed law and fact, and must be determined according to the evidence in the particular case.'
10. Learned Counsel Bannurmath then referred me to the decree which states that the decree-holder should proceed first againstSy. No. 110 and if the sale proceeds are not sufficient, she should proceed against the properties of Jdrs. 1, 3 and 7 and even if the sale proceeds thereof are not sufficient then she should proceed against the properties of Jdrs. 2, 4 and 6. He tried to construct an argument on the basis of this decree that when Sy. No. 110 had already been sold for recovering the previous arrears, she should now proceed against the properties of others as mentioned in the decree. It cannot be forgotten that maintenance is a recur-ring right and it would continue to be a charge on the property till the decree-holder continues to be alive orcontinues to have the right of enforcing the claim of maintenance. If at a particular point of time Sy. No, 110 was sold and the sale proceeds thereof were not sufficient to liquidate the arrears of maintenance, in that execution case itself, then she could also proceed against other properties in the very execution. This would not apply to a subsequent execution filed to recover subsequent arrears of maintenance. In this execution she wants to recover the maintenance arrears that had fallen due after the sale of the property in the previous execution. Therefore, I am not much impressed with his argument.
11. In the result, there is no merit in the revision and it is, accordingly, dismissed. No costs in this revision.