ORDER
1. This civil revision petition is directed against the order dated 14-10-1999 in Civil Miscellaneous Appeal No. 37 of 1999 passed by the learned Additional District Judge, Madanapalle, Chittoor District, whereby he dismissed the appeal confirming the order dated 19-8-1999 in IA No. 76 of 1998 in OP No. 4 of 1998 passed by the learned Principal Junior Civil Judge, Madanapalle, which was filed under Order 39, Rule 1 of the Code of Civil Procedure (for brevity 'the Code') seeking temporary, injunction restraining the 2nd defendant from proceeding with the execution in OEP No. 110 of 1997 in OS No. 270 of 1994.
2. The plaintiffs-petitioners are the revision petitioners herein. It is stated that the first petitioner-plaintiff is the wife and the petitioners 2 and 3 are the daughters of the 1st defendant and they filed the suit for maintenance and for creation of charge over the petition schedule property. It is further stated that the first defendant had executed nominal registered mortgage deed in favour of the respondents 2 and 3 - 2nd and 3rd defendants without receiving any consideration, that her husband has no necessity to borrow any sums from other persons and they have not derived any benefit under the mortgage deeds said to have been executed by her husband in favour of the 2nd and 3rd defendants. It is further stated that her husband earns Rs. 50/- per day attending to agricultural coolie work and claimed Rs. 750/- as maintenance to for them and further claimed Rs. 25/- each to the petitioners 2 and 3 for their marriage expenses and that they are entitled to create charge over the plaint 'A' schedule house property. It is also stated that the second respondent-defendant knowing fully about the right of the petitioners for maintenance, filed a suit in OS No. 270 of 1994 before the Principal Junior Civil Judge, Madanapalle in collusion with the first defendant for recovery of the amount said to be due to him under mortgage deed dated 11-2-1987 and 22-9-1987 for Rs. 10,000/- and Rs. 5,000/-respectively and has obtained ex parte preliminary decree and proceeding with the sale of the said 'A' schedule property in OEP No. 110 of 1997 to knock away the same and, therefore, the said petition was filed to issue an interim injunction to stay all the proceedings in the said OEP pending disposal of the OP.
3. The second defendant filed counter denying the allegations and stated that on 11-2-1987 the first respondent borrowed Rs. 10,000/- from him for construction of existing building and the property was hypothecated to him by the first respondent under a registered mortgage deed dated 11-2-1987, it is further stated that the first respondent purchased the petition schedule property from Ramanadha Chetty in 1986. It is stated that on 22-9-1987 the first respondent borrowed Rs. 5,000/- from him and executed another mortgage deed, and therefore, he is entitled to proceed with the execution.
4. After considering the documentary evidence filed on behalf of the respondents and having regard to the contentions raised on behalf of the parties and the decisions relied on by them, the Court below dismissed the interlocutory application holding that the petitioners are not entitled for temporary injunction restraining the respondents from proceeding with the execution in OEP No. 110 of 1997 in OS No. 270 of 1994 and thus vacated the ad-interim injunction granted on 23-9-1998.
5. Against that order, the petitioners preferred civil Miscellaneous Appeal No. 37 of 1999 before the learned Additional District Judge, Madanapalle, who by the impugned order dismissed the same, observing that the first defendant - respondent has not chosen to appear in the Court and did not contest the suit and an ex parte decree was passed and he has not chosen to file any appeal, but all of a sudden his wife and children have come to the Court alleging fraud against the defendants 1 and 2, which the Court did not believe.
6. Against that order, the present civil revision Petition is filed contending that the trial Court erred in law by appreciating the facts in a biased and prejudicial manner, because without any oral or documentary evidence the trial Court held that the present litigation is at the instance of first defendant, that the Court below committed grave irregularity by not considering the case of the petitioners on the well established principles of prima facie case, irreparable loss and injury and balance of convenience, that the impugned order suffers from patent illegality as there is no discussion whatsoever on the entitlement of petitioners for maintenance and the necessity to preserve the plaint schedule property to that extent. It is mainly contended that the Court below ought to have been that according to the personal law of the plaintiffs the father i.e., the first defendant is under legal obligation to provide maintenance and the same can be effectively done by preserving the schedule properly only and therefore, the balance of convenience is in favour of the petitioners.
7. On petition from the petitioners herein, 2nd and 3rd respondents are impleaded as party respondents in CMP No. 10890 of 2001 on 7-9-2001.
8. The second defendant filed vacate stay petition. Both the respondents herein have contended that the suit was filed against the husband of the petitioner in OS No. 270 of 1994 for recovery of the mortgage debt and after the suit was decreed, EP 110 of 1997 was filed for realisation of the decretal debt and at that stage, JDR in the said suit, with a view to defeat the recovery under the decree, set up his wife and children to file the present OP 4 of 1998 against him claiming maintenance and sought for the injunction restraining the execution Court to proceed with the said mortgaged properties pending disposal of the OP, that the Courts below have considered the issue involved in the Interlocutory Application in right perspective and dismissed the same and therefore, is sustainable in law.
9. The learned Counsel for the petitioner submitted that under Mohammedan Law, it is the obligation on the part of the father of the children to maintain them and they have a charge over the property of the father and when such father of the minors acts prejudicial to the interests of the children, they are entitled to approach a Court of law for the grant of maintenance or for creation of charge over his property. It is further contended that under Order 21, Rule 66(2)(c) of the Code, where any property is ordered to be sold by public auction, in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of the Court; that such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale and specify as fairly and accurately as possible, any encumbrance to which the property is liable and, therefore, without compliance of Section 39 of the Transfer of Property Act and Order 21, Rule 66(2)(c) of the Code, the defendants are trying to put the suit schedule 'A' property for public auction for realisation of the decretal amount in OS No. 270 of 1994; that the petitioners have not aware of the pendency of the proceedings before the Court below and therefore, they are not approached the Court in OS No. 270 of 1994 and when EP was filed to put 'A' schedule property for realisation of the suit decretal amount, they came to know the pendency of OS 270 of 1994, immediately they have approached the Court and filed the above said OP, therefore, the petition is in time, as it was filed from the date of knowledge of filing of the suit OS 270 of 1994. Moreover, the respondents in collusion with the first defendant with a view to defeat the claim of the petitioners 2 to 4, who are the children of the first respondent, transaction was entered and a collusive decree was obtained. In support of his contentions, he relied on the judgment of Madras High Court in Ibrahim Fathima v. Mohammed Saleem (Minor) and Ors., : AIR1980Mad82 . A learned single Judge of Madras High Court has held that maintenance of children under Mohammedan law is father's obligation and attaches to his property and runs with it. The learned Judge after going through the traditional books on interpretation of Mohammedan Law held that the children's right to maintenance in a Muslim household always attaches to the father's property in such a way and in such measure that it is not affected by any subsequent alienation by the father with notice of the charge or by an alienation which is gratuitous. Saying that Muslim father's obligation to maintain his minor children is personal does not mean that the only sanction which the law imposes for the performance of the obligation is to proceed against his person whenever he fails to discharge that obligation. It is quite reasonable and civilised to expect all systems of law to link children's maintenance with property as its security, Mohammedan Law not being an exception. In the context of the relationship between a father and his minor children, all that the idea of personal obligation imports is that he is under a duty to maintain them even on the mere aspect of his being their parent. The learned single Judge of Madras High Court has rendered the above judgment following the judgment of this Court in Manikyam v. Venkayamma (AIR 1957 AP 710) wherein this Court has held that it is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. The rule as to the personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property. It is further observed that although these observations were rendered in the context of a Hindu wife's right of maintenance against her husband or of a similar right of a Hindu infant against his father, these observations were held to be having a bearing a general character, deriving therefrom a proper conception about the nature and content of the right to maintenance of Mohammedan children as against the property of their father.
10. The learned Counsel for the petitioners has also placed reliance on yet other judgment Siddegowda v. Lakkamma and Ors., : AIR1981Kant24 . Though this decision is rendered under the provisions of the Transfer of Property Act, the principle is that where a transaction of sale of immovable property was entered into by the husband after coming to know that the wife was going to present a suit for maintenance, the same could not be said to be bona fide transfer without notice and therefore, the property could be charged for ensuring payment of maintenance without voiding the sale deed. This judgment was rendered after following the principle in Manikyam v. Venkayamma (AIR 1957 AP 710) and Kare More Sharabhanna Rudrappa v. Basamma (AIR 1962 Mys. 207). Relying on this judgment, it is contended that the Courts below have correctly extended the benefit to the plaintiffs which flows from the provision of Section 39 of the Transfer of Property Act and create a charge on the suit schedule property without voiding the transaction.
11. Reliance is also placed on a decision Firm Balak Ram Mehar Chand and Ors. v. Lachman Das, . This matter arose under Order 21, Rule 66. The Court held that the litigation with regard to the property put up for sale is a material fact to be included in the sale proclamation under Order 21, Rule 66 and Where the Court thinks fit that it is material for the intending buyers to know that the property to be sold is under litigation and directs the Amin to give them that information it is entirely justified in do so. This judgment of the Punjab High Court ,wa$ rendered after following the principle laid down in Venkataraghavamma v. Ranganayakamma (AIR 1932 Mad. 738).
12. From the narration of facts and scrutiny of the decisions referred to above make it is clear that it is an obligation of the Mohammaden father of the minor children to maintain them and the children have a right for maintenance and can create charge over the property of their father. But, in view of the decisions in Siddegowda's case (supra) and Balak Ram Mehar Chand's case (supra) before ordering sale of suit schedule property by the Court, it has to notify to the intending buyers that the property is under such a litigation and the Court has to ascertain under Order 21, Rule 66(2)(c) of the Code, whether the property proclaimed is under encumbrance, for realisation of the decretal amount.
13. On the other hand, the learned Counsel for the respondents submitted that the petitioners were aware of the pendency of the suit, though summons were served on the first defendant, he did not chose to appear before the Court and the respondents 1 and 2 and the petitioners are living under the same roof in the house, that just because it is alleged that the respondent No. 1 is not looking after the petitioners, they cannot be held entitled to create charge over the property, which is put to sale for realisation of the decretal debt. It is also contended that instead of filing OP, the petitioner should have filed a suit for perpetual injunction and got the decree set aside in OS No. 274 of 1994 under Order 39, Rule 1 of the Code, and obtain interim injunction not to put the 'A' schedule property to sale, but instead they resorted to filing the OP and, therefore, the procedure contemplated under Order 21, Rule 66 of the Code is not available to the petitioners and in view of the decree passed in OS No. 274 of 1994, the petitioners are not entitled for the grant of relief and, therefore, the Courts below were right in rejecting the application on the ground of limitation and they are not entitled to seek injunction to stay the execution of sale of 'A' schedule property for recovery of the decretal amount. In support of this contention, the learned Counsel for the respondent has relied on the Division Bench judgment of this Court in Pulakanti Pundareekam and Anr. v. Madanlal and Ors., 1964 (2) An.WR 412. The matter arose for specific performance of the contract to sell immovable property which was covered by a final mortgage decree. After analyzing Orders 39 and 34, Rule 5(3) of the Code, the Bench held that after a decree for the payment of the amount due on all the mortgages is passed, it is not open to the mortgagor to redeem any of the mortgages individually. The appellants, who seek to step into the shoes of the mortgagors - judgment debtors, are not in a better position and the consideration that apply to the mortgagors will equally apply to them. In these circumstances, it could not be postulated that the appellants have a prima facie case against respondents 3 to 8 therein, and that there is a fair and substantial issue to be tried in the suit in relation to them. If that were so, they could not be prevented by an injunction from bringing the property to sale in execution of the decree obtained by them and refused to issue injunction asked for.
14. To the same effect, the learned Counsel for the respondents has further relied on the decision Kansara Soni Jivaram Bhudhu v. Dahibai, AIR 1951 Kutch 36.
15. Though the petitioners cannot object to the sale of 'A' schedule property in execution of the judgment and decree passed in OS No. 270 of 1994 through OEP 110 of 1997, they can claim a charge over the property of their father - first respondent - defendant, who is negligent to maintain them. In view of these circumstances, the learned single Judge of Madras High Court, has rightly held that the children's right to maintenance in a Muslim household always attaches to the father's property it is not affected by any subsequent alienation by the father with notice of the charge or by an alienation which is gratuitous. The obligation of maintenance of minor children on the father though personal, does not mean that his property in performance of that obligation cannot be proceeded against whenever he fails to discharge that obligation. It is quite reasonable and civilised to expect all systems of law to link children's maintenance with property as its security, Mohammedan Law not being an exception. In the context of the relationship between a father and his minor children, all that the idea of personal obligation imports is that he is under duty to maintain them even on the mere aspect of his being their parent. Therefore, this does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. The rule as to the personal obligation only emphasises the legal and imperative duty of the father to maintain his minor children irrespective of the possession of any property.
16. From the above discussion I hold that it is a general law that father is under the obligation to maintain his minor children particularly father under Muslim Personal Law and if he has alienated any property prejudicial to the interest of the minors, they are entitled to create a charge under Section 39 of the Transfer of Property Act, over the said property. That apart, it is mandatory on the part of the Courts to notify under Order 21, Rule 66 of the Code to the intending buyers that the property under sale is subject to such encumbrance or litigation.
17. Therefore, for the above-said reasons, while allowing the execution of the judgment and decree in OS No. 270 of 1994 through OEP No. 110 of 1997, I direct the Court below to pass appropriate orders in EP by notifying to the intending purchaser's/ buyers, in compliance of Order 21, Rule 66(2)(c) with regard to the litigation attached to 'A' schedule property that the minors are having charge under Section 39 of the Transfer of Property Act over the said property of the first respondent -defendant.
18. The civil revision petition is accordingly disposed of. No order as to costs.