Chandrasekhara Aiyar, J.
1. The fourth defendant, who is the appellant in this appeal) is a simple money decree-holder who has purchased door Nos. 17 and 18 in execution of his decree. He objects to their being sold under the charge decree for maintenance made in O.S. No. 39 of 1927. His contentions are four-fold and can be stated briefly as follows. The decree creating a charge is bad for want of registration if the charge is to be deemed as one brought into existence by the act of parties. The second point is that a prior order made on 23rd October, 1933, on an application by the judgment-debtor to stop the sale of houses bearing Nos. 18, 19, 20, 21 and 26 is res judicata against the contention raised by the charge decree-hoider. The third point taken is that Section 70 of the Transfer of Property Act which says that accession to the mortgaged property shall, in the absence of a contract to the contrary, enure to the benefit of the mortgagee does not apply to the present case because there could be no contract to the contrary in the case of a charge created by a decree of Court. Lastly, under the decree, what was charged were only the two houses then existing but not the site comprised within the boundaries specified in item 1 of the decree and consequently present door Nos. 18 and 19, which admittedly came into existence after the decree and were built upon the site not charged cannot be treated as accessions to the mortgaged property.
2. There is no substance either in the first or the last point. The charge created as the result of a compromise entered into between the parties in the maintenance suit has become embodied in the decree. No registration or attestation is therefore necessary.
3. A reading of the Tamil description of the schedule of property as given in the counter statement filed by the respondent satisfies me that it was not merely the two superstructures that were charged but also the site comprised within the boundaries specified. Reference was made to the difference in the description of item 2 where the property sought to be charged is separately mentioned as ' the ground and the thatched house.' The reason for the distinction is apparent. The second item was a thatched house and it might well have been contended if that alone had been mentioned without the site that the thatched house alone was intended as security. Such considerations do not apply to what may be called pucca buildings erected on sites belonging to the mortgagor, especially when there wa'S no reason for thinking that any reservation of the site was intended or contemplated.
4. Coming to the second point, the prior order is found at page 9 of the printed papers and is marked as Ex. D-4. It is indeed true, as found by the Subordinate Judge, that, though the question was raised that Nos. 18 and 19 along with Nos. 20 21 and 26 did not form part of the charge, there was no decision by the Subordinate Judge then to this effect as regards the numbers with which we are now concerned. He held in a general kind of way that, as the decree specified only two houses and as what was brought to sale were six houses, there was an attempt to sell what was prima facie in excess of the decree and that therefore the sale of the first item should be stopped. The question whether these items 18 and 19, could be said to have become affected by the charge decree and covered by it, which is the point now raised, was not then before the Court. It might well have been that the sale was stopped because items 20, 21 and 26 were held to be not comprised in the charge, just as it might have been that items 18 and 19 might not have been regarded as charged also. But in the absence of any decision covering the question that is now raised and dealing with the particular items which are not in dispute and having regard to what could only be regarded as a very prima facie view that was then taken by the Court as to what fell within the decree and what not, as superficial appearances went, I am not prepared to read this order as involving any final decision and attracting the bar of res judicata against the contention now raised by the charge decree-holder.
5. The objection to the applicability of Section 70 is that, as the charge was created by decree, there could be no contract to the contrary in such a case and that it is only when the parties could so contract that the rule would apply. It was stated already that the decree in this case was based on a compromise entered into between the parties under which a charge was created. Notwithstanding the decree, it was still a contract of the parties, the decree merely imposing the seal of the Court on this contract. Nothing prevents the parties from contracting out of the rights created under the decree even after its date. All that could be said is that such a contract cannot affect the decree directly. The position is not analogous to a statutory charge, which is dealt with and discussed in Corporation of Calcutta v. Arun-chandra Singha I.L.R. (1933)Cal. 1470. Where there is a statutory charge or lien which springs into existence as soon as a certain thing is done, there is no right in the parties to alter or obliterate the charge. But in the case of a decree based upon a compromise, the rights can be altered or modified by fresh contracts though they would not be able to go before the Court on the basis of such fresh contracts and ask the decree to be correspondingly modified. When the defendant in the maintenance suit made up his mind to build new structures on the charged property, it was open to him to have contracted with the decree-holder out of this rule about accession.
6. It is unnecessary in this case to go into the other question whether Section 100 of the Transfer of Property Act, which makes the provision applicable to simple mortgages applicable as far as may be to charges created by act of parties or operation of law, which govern charges created by decrees of Court. There is a conflict of view on this question and my impression is that, so far as Madras is concerned, it has been held that decrees of Court will come within the ambit of Section 100; but I do not want this expression of opinion to be regarded as final.
7. The appeal will stand dismissed with costs.