(1) The appeal is upon the short point whether, in execution of a maintenance decree in favour of a wife and a daughter, the husband and judgment-debtor (appellant here) can plead that his liability is extinguished by the fact that the charged properties were bought in by the wife for arrears of maintenance at a court sale in previous execution proceedings. the facts are not in dispute that there was such a court sale; and the learned counsel for the husband (appellant) contends that properties worth nearly Rs.30,000, were knocked away by the wife at the court sale for the inadequate consideration of Rs.10,000, which was then the aggregate of the maintenance arrears. But, I note the fact that this sale itself is sub judice in a litigation still pending in this court between the parties.
(2) However, this might be, the simple position that has to be considered is, whether the husband can claim in such circumstances, that the wife holds the property purchased at the court sale subject to further executability in respect of the continuing maintenance claim, and that, therefore, she must look to that property alone, or to the profits from that property for satisfaction of future maintenance. The argument is that where she is the court auction purchaser, and even in a case where a third party is a court auction purchaser, the maintenance claim s not extinguished by the purchase, and that the same properties continue to be liable for the charge. Certain observations of Basheer Ahmed Sayeed J. to the effect in Thangavelu v. Thirumalswami, 1955 2 Mad LJ 618 : AIR 1956 Mad 67, in delivering the judgment of the Bench, are relied upon, particularly the dictum.
'so long as the decree for the maintenance is a charged decree in respect of the property, any purchaser who buys the property in execution of the decree for arrears of maintenance, will only buy that property subject to the charge which still subsists in respect of future maintenance.'
But I notice that these observations are obiter, the decision itself being the authority for quite a different position which does not concern us here, that a simultaneous charge in favour of two parties is not extinguished, where the execution is in respect of one charge alone. The decision of the Calcutta High Court in Jnanendra Nath v. Sashi Mukhi : AIR1940Cal60 , is also relied on by the learned counsel for the appellant, for the view that the charge is not extinguished by the court sale, in the instance of such a charge for a continuing maintenance claim.
(3) But the point now before us is not, strictly speaking, whether the charge is extinguished or otherwise. The point is whether the personal liability of the judgment-debtor (the husband) is extinguished, or whether his other properties are still liable for the maintenance claim, and can be proceeded against in execution by the maintenance decree-holders. Again, at least as regards the daughter, she is not the purchaser at the court auction sale, and it is very difficult to see how she can be precluded from further executing her decree against the other properties of the judgment-debtor.
Even as regards the wife, so long as the personal liability of the judgment-debtor is not extinguished, her proceeding against the other properties will be in order. It is not, however, as if the judgment-debtor is without a remedy. He can always initiate proceedings to have the maintenance claims suitably reduced by court, in considerations of the properties purchased by the wife at the court sale, and the fact that she is in possession of the profits therefrom.
If the properties are worth much more, as alleged, the income will presumably be greater, and the present appellant can obtain a more enlarged relief with regard to reduction of maintenance, upon this basis. That is his true remedy, and he cannot sustain a defence at law that his other properties are not liable, because of some implied extinction of his personal liability altogether.
(4) The point is covered by the Bench decision in Sanyasi Rao v. Suryanarayanamma, AIR 1936 mad 964, which is precisely in point. As observed by Burn J. therein, whether the charge must be held extinguished or not by the court sale in favour of the maintenance holder herself, the personal liability of the judgment-debtor under the decree is not extinguished, and hence other properties of the judgment-debtor are liable.
(5) The order of the lower court is therefore, correct, and this civil miscellaneous appeal, which fails, is dismissed with costs.
(6) Appeal dismissed.