P.V. Rajamannar, C.J.
1. In O.S. No. 29 of 1948, a suit for partition in the Court of the Subordinate Judge of Ramanathapuram at Madurai, a decree in the nature of a preliminary decree was passed on the 13th April, 1951, which inter alia contained the following clause:
III. (a) that the 8th defendant be and hereby is entitled to past maintenance due to her mother, 7th defendant for a period from 12 years prior to suit up to 27th November, 1950, the date of death of 7th defendant, at Rs. 100 per mensem;
(b) for the return of the sum of Rs. 500 given by her husband's family to that of plaintiff and defendants 1 to 3;
(c) to be re-imbursed by plaintiff and defendants I to 3 the sum of Rs. 500 spent by her for the funerals of her mother (7th defendant).
2. This clause was followed by another clause which ran as follows:
IV. that the payments of the amounts declared under para. Ill supra be a charge on items 1, 13, 14, 20 and 52 to 62 of the plaint A Schedule.
3. The 8th defendant filed an execution petition (E.P. No. 20 of 1954) praying for a sale of the charged properties to recover the amounts to which she was declared to be entitled under the above clause in the decree. Objection was raised by the appellant before us who was the respondent in the execution petition that the decree was not executable and that no final decree had yet been passed and that the application was not maintainable and the charge could be enforced not in execution but only by a separate suit. The learned Subordinate Judge overruled the objection that the decree was only a declaratory decree and could not be executed and also the objection that a final decree had not been passed. But the learned Judge held that the provisions of Order 34, Rule 14 of the Code of Civil Procedure read with Order 34, Rule 15 would stand in the way of the decree-holder, that is, the eighth defendant, obtaining satisfaction of the decree by sale of the hypothecated property otherwise than by instituting a suit. He therefore dismissed the execution petition. There was an appeal to this Court against the order, CM.A. No. 120 of 1955, which was heard by Rarnaswami, J. The learned Judge evidently approached the question from a new angle and proceeded to discuss a question which in our opinion did not arise, namely, whether there was a charge within the meaning of Section 100 of the Transfer of Property Act. He was of the opinion that if the charge created by the decree in the suit was a charge which fell within the scope of that section that is, Section 100, then such a charge could be enforced only by a suit for sale as if it were a simple mortgage. He came to the conclusion that the charge created by the decree in this case did not fall under that section and therefore it could not be contended that a suit should be filed to enforce it. According to him, from this it followed that the decree in this case was executable. He also referred to the provisions of Order 34, Rule 14 of the Code of Civil Procedure but was inclined to hold that where a charge was created by a decree, that provision would not have any application. On this point he followed the rulings of this Court in Sowbagia Ammal v. Manicka Ammal : (1917)33MLJ601 , and Venkataramanamurthi v. Sundararamaiak (1918) 23 M.L.T. 355. As the learned Judge took the view that the decree as it stood was executable and it was not necessary to file a suit to enforce the charge declared by the decree he allowed the appeal before him and set aside the order of the Court below. The Letters Patent Appeal before us is against the order of Ramaswami, J.
4. Mr. Annaswami Ayyar, learned Counsel for the appellants, contended that the decree as it now stands is not executable, that it only declares the rights of the eighth defendant but there is no decree directing either the plaintiff or the defendants to pay any specific sum of money on or before a particular date, and so faras the charge was concerned, there was only a declaration but there was no direction that the properties should be sold in default of payment of the amount decreed. He submitted that it was not relevant for the purpose of his argument to refer to Section 100 of the Transfer of Property Act because if the decree was not executable in its present form, it did not matter whether the charge fell within the scope of Section 100 of the Transfer of Property Act or not. We agree with him. The decree does declare that the eighth defendant is entitled to the past maintenance due to her mother and to other sums of money. But there is no direction that the plaintiff or any of the defendants or all of them do pay to the eighth defendant any amounts on or before a particular date. The further clause also declares a charge on certain items, but there is no specific provision that in default of payment of the amounts declared to be due to the eighth defendant, the charged items, or such of them as may be sufficient to discharge the amounts due under the decree, be sold ; on the language of the decree we cannot but hold that the decree is not executable. We are convinced however that it could not have been the intention of the parties that though the eighth defendant was finally declared to be entitled to particular sums of money, nevertheless she should not obtain any relief by way of recovery of that money in execution of the decree. It could never have been intended that she should file another suit to recover the amounts declared to be due to her. In our opinion the respondent, the eighth defendant, should have brought to the notice of the Court the lacuna in?he decree as drafted and we are certain that the Court would have made necessary modifications to the decree. Instead of taking the simple course, the parties proceeded to have an academic fight, with the result that though the decree was passed in April, 1951, execution proceedings have not really commenced even in March, 1958. Sad though it may be, we cannot but help uphold the objection on behalf of the appellants that the decree as it stands is not executable. We therefore, allow the appeal and dismiss the execution petition filed by the eighth defendant-respondent. We have made observations above as to the proper course which should have been followed by the eighth defendant. In the circumstances there will be no order as to costs.