D.N. Mitter, J.
1. This is an appeal on behalf of the plaintiffs from decision of the Subordinate Judge of Rangpur, dated May 29, 1929. The plaintiffs had instituted a suit asking for among other reliefs a decree for arrears of maintenance for 11 years and 9 months from Baishakh 1322 to Poms 1333 B.S. The claim laid is for a sum of Rs. 6,627 with interest Rs. 2,368. That claim is against defendants Nos. 1 and 2 who are said to be the heirs of Krishna Gobinda. The relationship between the parties to the suit is shown in a genealogical tree which is to be found printed at page 152 of Part I of the paper-book. It would appear from the said genealogical tree that one Gobinda Nath Bakshi died leaving behind him two sons Kristo Gobinda and Ram Gopal. Hemlata who has survived Ram Gopal is the widow of Ram Gopal and Radha Priya is the daughter of Ram Gopal. It would appear that by an ekrarnama, which is to be found printed at page 18 of. the second part of the paper-book, executed by Kristo Gobinda on March 27, 1897, corresponding to Chaitra 15, 1303, B.S., the share of the plaintiff No. l's husband (Ram Gopal) was charged. At page 20, lines 20 to 30 of the second part of the paper-book is to be found the recital of this charge. It appears that subsequent to the creation of this charge some properties now in suit were acquired and a declaration is asked for that all these properties, which were properties Nos. 17 and 22, stand charged. It appears that on a suit being instituted on this ekrarnama in 1910 a compromise was arrived at and the charge which was created by this agreement was also declared by this compromise decree which is dated June 30, 1910, which is to be found printed at page 60 of the second part of the paper-book. It appears that subsequent to the compromise decree some of the defendants have acquired interest in some of the properties charged and they have also been impleaded in the suit and a declaration is asked for that the properties purchased by them are charged. There is a further relief prayed for in the suit and that is the last relief, namely, that the amount of maintenance claimed in the suit may be realised by the sale of the charged properties or by the appointment of a Receiver. Several defences were raised in this suit to the details of which it would be necessary to refer later. It appears that amongst other defences it was contended that the suit for recovery of arrears of maintenance for 11 years 9 months was barred by the statute of limitation, and that the suit was not maintainable having regard to the provisions of Section 47 of the Code of Civil Procedure. The Subordinate Judge gave effect to this defence by holding that it was open to him to convert this suit into an application under Section 47 and he held that the plaintiffs were entitled to a decree for arrears of maintenance for three years and three months on the ground that although the plaintiffs had no right to institute the suit yet they had the right to execute the decree within the period of 3 years and 3 months, having regard to the stipulation in the ekrarnama. With regard to the defences which were taken by the defendants that the purchasers of these interest were purchasers without notice of the charge, the Subordinate Judge has given effect to those defences with regard to some of the defendants.
2. Against this decision the present appeal has been brought and it has been contended in the first place that the Subordinate Judge has fallen into errors in holding that the suit was not entertainable having regard to the provisions of Section 47 of the Code and that the plaintiffs' claim for a period of 11 years and 9 months less 3 years and 3 months should be dismissed. It is contended that having regard to the construction of the decree which followed the ekrarnama it was open to the present plaintiffs to institute a suit for enforcing the charge created by the decree under Article 132 of the Schedules to the Limitation Act. The suit was in time having been instituted within 12 years of the date when the arrears fell due. With regard to the charge the Subordinate Judge has declared charge over all the properties except the 17 items which included property No, 26 of the ekrarnama. With regard to all these properties except property No. 26, it is argued in the second place on behalf of the appellants that the plaintiffs are entitled to a declaration of the charge. These sixteen items of property fall under six groups and it would be necessary to state the respective properties which are covered by each of the particular groups over which charge is sought to be declared in this Court. Group I properties are properties Nos. 27 to 31,36 to 39 and 41 of the ekrarnama. These properties were sold at, a rent sale and were purchased by one Bhowani Charan Roy who is defendant No. 5 in the suit. The defence of Bhowani, it may be stated here, is that he had no notice of the charge and further this charge was an incumbrance and that if this charge is to be regarded as an incumbrance Bhowani has annulled it by serving on the appellants a notice under Section 167 of the Bengal Tenancy Act, and it is said that the charge is not enforceable on these grounds.
3. Group No. 2 relates to property No. 26 and as with reference to this, the appeal is not pressed, nothing more need be said about it.
4. Group No. 3 properties consist of properties Nos. 17 and 22. They were purchased by the Maharaja Sir Prodyot Kumar Tagore who is defendant No. 6 in the suit. Maharaja Sir Prodyot brought a, 5as-1-1/2p. share in execution of a mortgage decree. Of these two properties, properly No. 17 is a nishkar properly and property No. 22 has been found by the Subordinate Judge to be a permanent hereditory tenure. It may be mentioned here, that there was a cross-objection preferred by the Maharaja Sir Prodyot Kumar Tagore in respect of the finding of the Subordinate Judge with reference to property No. 22 and it is contended that it is not a permanent tenure. It may be stated here that the question raised by the cross-objection need not trouble us for Mr. Gupta appearing for the appellants has conceded that the matter might be kept open for future determination. The defence of the Maharaja is that he had no notice of the charge and that the mortgage in his favour is subsequent to the charge by the ekrarnama but prior to the date of the decree which maintained the charge and it is stated that he is not accordingly bound because he had no notice of the charge. Evidence has been led on his behalf in support of this contention that he is a purchaser for valuable consideration without notice of charge.
5. Group No. 4 properties consist of properties Nos. 34 and 35. Defendant No. 14 is interested in these properties. His case is that he has purchased them in execution of a rent decree obtained by the Cossimbazar Ward State. His defence further is that he had no notice of the charge.
6. Group No. 5 consists of properly No. 19 and it is said by the Subordinate Judge that defendant No. 8 and defendant No. 14 were concerned with this property. It is contended on behalf of the appellants that defendant No. 8 in his written statement in paras. 7 and 8, which are to be found printed at p. 74 of the first part of the paper-book, disclaims all interest in this property. The Subordinate Judge, it is stated, in one part of his judgment was disposed to declare a charge in respect of this property. But after coming to a finding to that effect he seems to have overlooked the former finding and has ultimately declared that there was no charge,
7. The last group comprises property No. 13 of the ekrarnama. It is maintained that this property is still in the hands of Kristo Gobinda's heirs. It appears that in a suit between Hemlata, the present plaintiff and Kristo Gobinda's heirs these properties were declared to be debuttar properties. The Subordinate Judge accordingly found that in those circumstances the charge does not exist. With reference to this property we have been asked to admit as additional evidence the judgment of the Court of appeal which has been put in this Court and has been marked as Ex. 26 on behalf of the plaintiffs. We have admitted the same. From this judgment it will appear that the decision of the first Court declaring this property to be debuttar property was reversed, and it is contended that having regard to this additional evidence the finding of the Subordinate Judge that no charge exists in respect of this property must be set aside. These are substantially the two contentions raised on behalf of the appellants.
8. With regard to the first point, namely, that the Subordinate Judge has committed an error in dismissing the plaintiffs' suit for arrears of maintenance beyond the period of three years and three months from the date of the institution of the suit it may be stated that this contention really turns on the construction of the decree which was based on the ekrarnama and to which reference has already been made. The decree is to be found printed at p. 60 of the second part of the paper-book, and it has been contended on behalf of the appellants that there is nothing in this decree which precludes the plaintiffs from maintaining the suit from enforcing the charge created by this decree on the basis of the ekrarnama. On the other hand it is contended on behalf of the respondents that on a proper construction of the said decree the Court below was right in holding that the suit for enforcing the charge does not lie, and the proper course to proceed is by way of the execution of this decree. It is necessary, therefore to deal with the relevant portions of this compromise decree in order to decide between these conflicting contentions with reference to the construction of the decree. At p. 61 of the second part of the piper-book the material portion of the claim is set forth as follows:
Hence the plaintiff brings this suit on a prayer for recovery of the sum of Its. 5,786-4 as. from the defendants' own properties and his person and, if that be insufficient, from a part of or whole of the properties charged and in case the monthly allowance for the subsequent period he not regularly paid, for an order directing the realisation of the arrears of monthly allowance in. execution proceedings on the strength of the decree passed in this suit and without a fresh suit beings instituted for the same.
9. After setting out this claim there follows the description of the numerous properties, affected by this compromise decree. At p. 84 of the same volume of the paper-book other material portions of the decree run as follows:
That for the payment of the amount under this decree the, properties specified in the schedule to the plaint shall remain liable according to the terms of the deed of monthly allowance, that the defendant himself shall remain liable for the decretal amount; that the plaintiff shall be entitled to recover this decretal amount from the defendant, that with regard to the monthly allowance that has fallen into arrear every three months during the period subsequent to that in claim and that may fall into arrear thereafter, the plaintiff will be entitled to realise the same from the defendant together with interest thereon at 2 per cent per mensem, by executing this decree every 3 months, without a special suit and that there shall be a charge on all the properties given in the schedule of the plaint for payment thereof.
10. It is contended for the appellants that on a -proper construction of the decree it should be held that what was intended by the parties was that if the plaintiff wanted to proceed to get an execution of this decree personally against defendants, she might do so at her option, and that all that the decree declared was that there shall be a charge on all properties given in the schedule for the arrears of appellants maintenance. There is nothing, it is said, in this decree which would go to show that the parties intended that the charge should be enforced in the course of execution by sale of the properties specified in this decree, The learned Advocate, in support of the contention that a suit was the only remedy provided for enforcing the charge, relied on several decisions of this Court and in particular he has referred to Aubhoyessury Dabee v. Gouri Sunkar Pandey 22 C 859, where Norris and Gordon, JJ. came to the conclusion that where by a consent decree it is ordered that payment of the decretal amount be made by instalments, and that the properties set forth in a schedule annexed to the decree stand charged with payment of the said instalment, the said properties cannot be sold in execution of the decree, but a separate suit must be brought under Section 67 of the Transfer of Property Act. On behalf of the respondents it was pointed out that that would be the case. But for the provision in the decree for. arrears of maintenance that the sum due for future maintenance can be recovered in execution. The learned Judges were careful enough to point out at p. 863 this:
If the decree had said that in default of payment in Calcutta of the said sums, etc., the same shall immediately become due and realizable by execution by the attachment and sale of the properties set forth in the schedule, there might have been some force in the argument.
11. It is said that no plaintiff can sell the properties without bringing a separate suit. On behalf of the respondents our attention was drawn to a decision of Mukherji, J. in Kashi Chandra v. Priya Nath Bakshi : AIR1924Cal645 . In that case the learned Judges distinguished the case relied on by the appellant, namely Aubhoyessury Debee v. Gouri Sunkar Pandey 22 C 859, and said this:
In each of the cases mentioned, the decree was for money and there was a charge upon the properties for security in respect of the judgment-debt. There was no express provision in the decree, as there is in the present case, that the decree-holder would be entitled to realise his dues by execution of the decree.
12. It will be noticed that the decree in that case was a mortgage decree and not a money decree, and it was held in these circumstances that it could be executed against the mortgaged properties without bringing a fresh suit and that O XXX1V, T. 15, Civil Procedure Code, was not applicable to the case. We have no doubt that on a proper construction of the decree the appellant, plaintiff Hemlata Devi, intended that she wanted to realize the arrear by execution of a personal decree against Krista Gobinda or his heirs. No doubt she would be able to do so. The decree was merely a decree declaring a charge and the suit was competent. It is not disputed that if a separate suit % has to be brought, Article 132 of the Schedules to the Limitation Act would apply and that the suit was in time. We think, therefore, that the Subordinate Judge was wrong in dismissing the plaintiffs' suit for a period beyond 3 years 3 months from the time of the institution of the suit. We are of opinion that plaintiff No. 1 is entitled to recover the sum of Rs. 6627 with interest of Rs. 2,368 from defendants Nos. l and 2 by sale of the properties to which we will advert hereafter. This disposes of the first ground taken in this appeal.
13. With regard to the second ground which affects all the groups of properties to which reference has already been made it has been contended broadly that the Subordinate Judge was in error in coming to the conclusion that the defendants not having notice of the charge are not bound by the charge and consequently there should be no declaration as against them. This contention about notice really falls under two branches. The first branch raises a question of law and it is generally contended that the question of notice does not arise where the charge is created by the decree. The other branch of the contention raises a question of fact and it is said that there was no sufficient evidence even if notice was necessary in order to sustain the charge that the purchasers had no notice. This was the general position taken up at the beginning of the opening by the learned Advocate for the appellants. This argument we will have to consider with reference to the five groups except group No. 3 for it has been conceded on behalf of the appellants that the mortgage in favour of the Maharaja Prodyot Kumar Tagore with reference to these properties, being prior to the date of the decree the plaintiffs cannot succeed as against the Maharaja. Unless a case is made out by the Maharaja that he had no notice of the charge created by the ekrarnama, we will consider the general question with reference to those three groups of properties namely groups Nos. 1, 4 and 5. In support of this contention that where a charge is created by the decree in order to enforce the charge it is quite immaterial whether the persons who have subsequently acquired the properties affected by the charge had notice of the charge or not; reliance has been placed on a number of decisions both of this Court and also of other High Courts in India. The case of Kulada Prosad v. Jogeshar Koer 27 C 194 which was a case of charge created by compromise decree has been relied on in the first instance. Cases of the other High Courts have been cited to with the cases of Maina v. Bachchi 28 A 655 : 3 ALJ 551 : AWN 1906, 165, Bhoje Mahadeb Parab v. Gangabai Vithal Naik 37 B 621 : 21 Ind. Cas. 54 : 15 Bom.LR 809, Mahadeo Prasad v. Anandi Lal : AIR1925All60 and Fateh Ali v. Gobardhan Prasad 5 Luck. 172 : 117 Ind. Cas. 405 : AIR 1929 Oudh 316 : 6 OWN 493. The last is a decision of the Lucknow Oudh Chief Court and is a decision of the Full Bench of that Court, where all the previous decisions have been considered. These decisions undoubtedly support the appellants' contention. Difficulty has been created in the consideration of the question by a remark of Sir Dinshah Mulla in his recent annotation of the Transfer of Property Act of 1933, where with reference to the cases just indicated the learned author says that those decisions proceeded on the view that effect of the charge is similar to that of mortgage in alienation of the ownership of the property. Those decisions, however, were not quoted and even prior to the Amending Act of 1929 it was clear that a charge would not like mortgage create an interest in the property and the amendment of 1929 expressly enacts that a charge created by a decree is enforceable against a transferee for consideration without notice. It is to be mentioned that this case is not hit by the Amending Act of 1929. But in support of the proposition that a charge would unlike a mortgage create no interest in the property, the learned commentator relies on four cases, namely, Royzuddi Sheik v. Kali Nath Mookerjee 33 C 985 : 4 CLJ 219, Gobinda Chandra Pal v. Dwarka Nath Pal 35 C 837, Khurshed Hossein v. Faiyaz Hussain 36 A 289 : 23 Ind. Cas 253 : AIR 1914 All. 6 : 12 ALJ 417 and Akhoy Kumar v. Corporation of Calcutta 42 C 625 : 27 Ind. Cas. 261 : AIR 1915 Cal. 478 : 19 CWN 37 : 21 CLJ 177. It has been strenuously contended on behalf of the ' appellants that notwithstanding the very great authority of Sir Dinshaw Mulla, the opinion cited in support of his proposition of law do not support the view of the learned commentator. We have, therefore, to examine these cases and we find that there is a foundation for the distinction sought to have been made by the appellants that those cases on which Sir Dinshaw Mulla relies on cases where the charge is not created by a decree. If is contended for the appellants that so far as the cases, which held that the charge for maintenance created by a decree is binding on the transferee whether he had notice of the charge or not, are concerned, the decisions are uniform; and the decisions of Royzuddi Sheik's case 33 C 985 : 4 CLJ 219 and of the three other cases referred to above are not decisions of cases where charges were created by decrees of Courts. It is said that these cases must be taken to apply to the facts of the particular cases and the principle laid down in Quinn v. Leatham (1901) AC 34 : 50 WR 139 : 65 JP 708 : 85 LT 289 have been invoked in support of this contention. It is said that this case is an authority for what is actually decided and not what would seem to follow logically from it. We think that there is considerable force in this contention. We do not see any reason why in the absence of a view, contrary to the view taken in Kulada Prosad v. Jogeshar Koer 27 C 194 which has been followed by the other High Courts we should not' follow the decision of that case. We accordingly hold, in view of these authorities and distinguish the cases on which Sir Dinshah Mulla relies, that where a charge is created by a decree no question of notice arises. In this view it is not necessary to discuss the evidence with regard to the notice in respect of the three groups of properties, namely, group No. 1, group No. 4, and group No. 5. We are of opinion that they are entitled to a declaration of the charge in respect of three groups of properties. With regard to group, No. 6 it may be stated at once that as property No. 13 is comprised in the group, it is still in the hands of Kristo Gobinda's heirs and with regard to the additional evidence plaintiff No. 1 is entitled to a charge in respect of this property also.
14. There remains for consideration properties Nos. 17 and 22 which have been purchased by Maharaja Sir Prodyot Kumar Tagore. In this case as the mortgage was prior to the compromise decree, it follows that the plaintiffs can only succeed as against the Maharaja if it is established that the Maharaja had notice of the charge. In this part of the case the Maharaja's office has been examined whose evidence is to be found at page 138 of the paper-book. The officer is one Tarakeswar Chowdhury who had been a Jama Moharair of the Maharaja at Kaligunj Kutchery for about 31 years. He has said in the most explicit terms that plaintiff No. 1 or her husband was never a tenant of the Maharaja. Neither his master nor any agent or servant of his master knew or ever heard of the plaintiffs' auction-purchaser or of charge or of any litigation between Kristo Gobinda and the plaintiff. We are not impressed with the comments that have been made in this respect on behalf of the plaintiffs, appellants. There is abundant evidence that Maharaja had no knowledge of this charge. It follows, therefore, that the plaintiffs are not entitled to a declaration they seek for in respect of the properties Nos. 17 and 22. The result, therefore, is that the decree of the Subordinate Judge as printed at pages-184 and 185 of the first part of the paper-book be varied to the following effect. In Clause (a) at page 184 the following properties are to be added, namely, properties Nos. 27, 31, 36, 39, 41, 34, 35, 19 and 13, and a charge is declared on the properties,. included in the Clause (a). Then in para. (5) at page 184 the plaintiffs are declared to be entitled to recover, as has already been said, a sum of Rs. 6,627 with interest of Rs. 2,368 by the sale of the properties mentioned in Clause (a) as modified by this Court, and in Clause (b) at page 184. Again in page 185 the word 'proportionate', the first word in the first line should be deleted. At line 10 of the same page the figures 5 and 14 should be deleted. The lines Nos. 12, 13 and 14 should be deleted and in lieu thereof the following order is made. Defendant No. 12 will get half his Pleader's fee from the plaintiff's. The result, there fore, is that the appeal is allowed against all the defendants except defendants Nos. 6 and 12. The appeal against the Maharaja Sir Prodyot Kumar Tagore is dismissed. With regard to defendant No, 8, it appears that he does not claim any interest in property No. 19 and as we have already said although the plaintiffs are entitled to get a declaration of charge with reference to this property it seems to us that defendant No. 8 has been unnecessarily dragged into Court. He is, therefore, entitled to costs in this Court. The plaintiffs-appellants are entitled to costs in this Court. We assess the hearing fee at 20 gold mohurs. The Maharaja Sir Prodyot Kumar Tagore is entitled to his costs. We assess the hearing fee at 6 gold mohurs Maharaja of Cossimbazar is also entitled to his costs and we assess the hearing fee at 2 gold mohurs, Mr. Jatindra Nath Sanyal's client defendant No. 8 is entitled to his costs and we assess the hearing fee at two gold mohurs.
15. The cross-objection is disposed of in accordance with the remarks in the earlier part of the judgment
16. I agree.