1. The first defendant obtained a decree for maintenance against defendants Nos. 2 to 5. By the decree a charge was created over certain immoveable property concerned in the present suit. In executing the decree the property which was subject to the charge was attached and sold for Rs 900. The plaintiff was the purchaser. He paid the purchase-money into Court, and the first defendant drew out Rs. 365-7 0 of it. On .3rd defendant's petition the sale was subsequently set aside on the 14th September 1908. The plaintiff applied for a refund of his purchase-money and obtained an order on 1st December 1908 that 1st defendant should within one month deposit in Court the money drawn out by her with interest at 6 per cent.
2. Subsequently in execution of that order he attached on 15th December 1908 1st defendant's maintenance decree. He applied to sell the property charged under the maintenance decree but his application was dismissed on 22nd April 1910, for what reason it is not clear, from the records before us. Finally he brought this suit in 1911 against defendants Nos. 1 to 5 to recover the purchase-money. In the plaint there is a prayer for sale of the debt of Rs. 607 due to 1st defendant from defendants Nos. 2 to 5. But the Courts below have treated this as a suit by the holder of a decree to enforce a charge and have passed decrees in the form prescribed by Order AXX1V, Rule. 4(1), Civil Procedure Code.
3. The points argued in second appeal are (1) whether the plaintiff's suit is maintainable in its present form; (2) whether the plaintiff is entitled to recover from defendants Nos. 2 to 5 the amount due to 1st defendant up to the date of his attachment of the maintenance decree or the amount due to her on the date when this suit was instituted.
4. In considering the maintainability of the present suit it is necessary to keep distinct the plaintiff's cause of action to recover from 1st defendant the amount of purchase money taken out of Court to which he alone became entitled upon the sale being set aside, and his cause of action as against defendants Nos. 2 to 5, who are the judgment-debtors in the maintenance suit, to execute the decree attached by him as if he were the original decree-holder.
5. As against 1st defendant the plaintiff as purchaser was entitled by Order XXI, Rule 93, to an order for repayment of his purchase-money with or without interest and to execute the order under Section 36, Civil Procedure Code, as if it was a decree. He appears to have followed this procedure when he obtained the order of 1st December 1908 and to have executed the order when ho attached the maintenance decree.
6. The interest the plaintiff is entitled to against 1st defendant is interest up to the date of repayment of the purchase-money taken by her. Under Order XXI, Rule 93, it was discretionary with the Court to direct the payment of interest and the Court in its order of 1st December in fact 6xed the interest at 6 percent. up to the date of payment. Having got this order it was unnecessary for the plaintiff to get a personal decree against this defendant; but in order that she might be bound by the order or decree to be obtained against defendants Nos. 2 to 5, it might have been advisable to make her , a party to any proceedings against the family property of defendants Nos. 2 to 5.
7. As between defendants Nos. 2 to 5 and the plaintiff there is no privity of contract for the return of his purchase-money. He can only recover it by virtue of his right to step into the shoes of the maintenance decree-holder and to execute her -decree in any manner lawful to her [Order XXI, Rule 53(3)].
8. It was held in Venkatasubhamma v. Venkanna 17 M.L.J. 217 that the maintenance decree-holder must institute a fresh suit and could not, in execution of his or her maintenance decree, bring to sale the properties made subject by that decree to a charge for maintenance. Section 99 of the Transfer of Property Act, which was held to preclude the decree-holder from proceeding in execution, has sinoe been repealed, and it has recently been decided by this Court in Sowbagia Ammal v. Manika Mudali 42 Ind. Cas. 975: (1917) M.W.N. 782 that there is nothing in Order XXXIV, Rule 14, which has taken the place of Section 99, Transfer of Property Act, to prevent a maintenance decree-holder from proceeding in execution against the properties charged under the maintenance decree. 'The learned Judges who decided that case remarked that the position of a widow who, by virtue of her maintenance decree, for the first time acquires a charge on specified immoveable properties, is different from that of a holder of a charge under Section 100 of the Transfer of Property Act (although Section 100 speaks of charges arising by operation of law as well as those created by act of parties), and that it does not fall within the scope of Order XXXIV, Rule 14 We are not prepared to dissent from their opinion.
9. Accordingly it was open to the plaintiff as representative of the maintenance decree-holder under Order XXI, Rule 53, to proceed to attach and bring to sale the defendants immoveable property. Instead of doing so he has launched this suit, alleging in his plaint that all the parties agreed that that was his only remedy. The question of estoppel has been argued before us but it is unnecessary to go into it, as there was no issue raided on the point at the trial and as the plaintiff's suit need rot be dismissed simply on the ground that his proper remedy lay in execution, seeing that under Section 47, Civil Procedure Code, it was always open to the Court in which the suit was instituted to treat the suit as a proceeding and deal with it accordingly.
10. The objection to the suit is a good objection. The plaintiff is not the holder of the charge nor the transferee of the maintenance decree-holder's interest. He has not as yet brought the maintenance decree to sale and purchased it himself. He has not. done more than attach the decree, an act which gives him a right to execute the decree by virtue of Order XXI, Rule 53(3), but not a right to institute a suit as mortgagee for the sale of the mortgaged property, as that right remains vested in the holder of the charge or mortgage, namely, 1st defendant. As regards interest the plaintiff appears to be entitled to recover it up to the date of repayment of his purchase-money from the defendants Nos. 2 to 5 to an extent not exceeding the past and future maintenance due to 1st defendant on the date of plaintiff's instituting these proceedings. The Appellate Court has exonerated 1st defendant' from interest and the plaintiff has not appealed.
11. We allow the 3rd defendant's appeal with costs here and in the Courts below, and we remand the plaintiff's suit to the Court of the District Munsif for being disposed of as a proceeding in execution under Section 47(2), Civil Procedure Code.