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Karuppa v. Karuppayy - S.A.No.325 of 1997  RD-TN 1816 (7 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07/06/2007
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.325 of 1997
Karuppan .. Appellant
Karuppayye .. Respondent
Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 19.01.1996 in A.S.No.62 of 1993 on the file of the learned Subordinate Judge, Pudukottai, confirming the judgment and decree dated 03.09.1992, in O.S.No.371 of 1991 on the file of the learned District Munsif, Aranthangi.
For Appellant ... Mr.V.K.Vijayaraghavan
For Respondent ... No representation
This second appeal is focussed as against the judgment and decree dated 19.01.1996 in A.S.No.62 of 1993 on the file of the learned Subordinate Judge, Pudukottai, confirming the judgment and decree dated 03.09.1992, in O.S.No.371 of 1991 on the file of the learned District Munsif, Aranthangi.
2. The warp and woof of the case of the plaintiff Karuppayee, the respondent herein, the wife of the defendant, is that Karuppan, the appellant herein married her, but subsequently, he married also the sister of Karuppayee and thereupon, Karuppayee was constrained to live away from her husband and that she claimed maintenance including the arrears of maintenance and also charge over the immovable property described in the plaint.
3. The defendant who is the appellant herein filed the written statement disputing his liability to pay the maintenance.
4. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.6 were marked on the side of the plaintiff, whereas D.W.1 and D.W.2 were examined and Ex.B.1 was marked on the side of the defendant.
5. Ultimately, the trial Court awarded the maintenance to the tune of Rs.250/- per month payable by the defendant to the plaintiff, in addition to awarding arrears of maintenance to the tune of Rs.9,000/- and also created charge over the immovable property.
6. Being aggrieved by and dissatisfied with, the said judgment, the defendant preferred appeal in A.S.No.62 of 1993 before the learned Subordinate Judge, Pudukkottai, who reduced the quantum of Rs.250/- to Rs.200/- per month.
7. As against which, this second appeal has been preferred by the defendant on the following main grounds among others: Without considering the financial wherewithal of the defendant, simply the maintenance amount was ordered to be paid by the defendant to the plaintiff. The plaintiff consented to the defendant for his contracting second marriage with the sister of the plaintiff. Without any valid reason, the plaintiff got herself separated from the defendant. The charge was created in respect of all the properties referred to in the schedule of the plaint even though the plaintiff was entitled to only a share in those properties.
8. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:
"Whether a charge can be created in respect of all the properties shown in the suit schedule for enforcing maintenance when the other sharers have not been impleaded as parties in the suit?"
9. Heard the learned Counsel for the appellant. The learned Counsel for the respondent is absent.
10. The learned Counsel for the appellant would submit that without going into the facts as to what is the share of the defendant over the property described in the schedule of the plaint, enbloc charge was created over the properties.
11. This question of proceeding as against the charge over the properties would arise in the event of arrears of maintenance not being discharged. At that time, it is open for the plaintiff to put forth what was the judgment debtor's share in that property and to the limited extent, the execution proceedings would follow and this Court need not ponder over it that in the second appeal. There are well laid down rules for bringing on sale only a share of the judgment debtor in joint properties.
12. Hence, in this view of the matter, this second appeal is dismissed, confirming the judgment and decree of the first appellate Court, dated 19.01.1996, in A.S.No.62 of 1993 on the file of the learned Subordinate Judge, Pudukottai. However, in the facts and circumstances of the case, there is no order as to costs.
1.The Subordinate Judge, Pudukottai.
2.The District Munsif, Aranthangi.
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