Meredith, J.:— This is an appeal by one Musammat Basumati Kuer, from an order of the learned Sub-ordinate Judge of Gaya, dated the 15th of March, 1939, disallowing her objection in execution proceedings.

In the year 1937 one Musammat Harbansi Kuer obtained a decree for maintenance based upon a compromise against one Jagdamb Singh, the brother of her deceased husband. The decree was in the following terms:—

“This suit coming on this 16th day of March, 1937, for final disposal it is ordered and decreed in term of compromise and the petition of compromise do form part of the decree. The plaintiff is entitled to get Rs. 240 as maintenance annually. In default of payment for one year she will be entitled to realize the amount with interest at 8 annas per cent, per month by the property given in the petition.”

The compromise petition which was made a part of the decree contained the following:—

“In case of the expiry of one year and non-payment of the maintenance allowance of the plaintiff, the plaintiff would be competent to recover the arrears of the maintenance allowance with interest thereon at the rate of 8 annas per hundred per mensem from defendant or his heirs and representatives by sale of 5 annas 4 pies share out of the entire 16 annas of the milkiat interest noted above.”

This reference was to paragraph 2 of the compromise petition, which provided that

“5 annas 4 pies share out of the milkiat interest in mauza Kasouti, pargana and thana Arwal, district Gaya, bearing tauzi no. 628, which was in the sir possession of the defendant, was earmarked for the aforesaid maintenance allowance of the plaintiff, and that during the life-time of the plaintiff the said share would remain liable for the maintenance allowance of the plaintiff.

It is clear, therefore, that the compromise decree made a provision for the realization of future maintenance by sale of the property specified, and created a charge upon that property for the purpose specified.

Subsequently, Harbansi Kuer put this decree into execution for recovery of a sum of Rs. 679-13-0 due as arrears of maintenance, and in execution the charged property was put up to sale. The sale proclamation however, did not specify that the property was being sold subject to the charge. On the contrary, it contained a statement that the property was free from incumbrance.

At the sale, the Musammat decree-holder bid up to Rs. 2,000, but was outbid by the present appellant Basumati Kuer, who is the only surviving daughter of the judgment-debtor Jagdamb Singh, and Basumati eventually purchased the property for the sum of Rs. 2,500.

Before the confirmation of the sale, Harbansi Kuer discovered the omission in the sale proclamation, and she, therefore, made an application praying that an order might be passed to the effect that by the sale, only the right, title and interest of the judgment-debtor had passed to the purchaser. She further prayed that if that order could not be passed, the sale should be set aside. The executing Court rejected her application to set aside the sale, on the view that only the right, title and interest of the judgment-debtor had passed, in other words, that the property had passed subject to the charge. After that, the judgment-debtor was allowed to withdraw the surplus sale proceeds, amounting to over Rs. 1,800.

On the 18th November, 1938, further arrears of maintenance having accrued, Harbansi Kuer put her decree once more into execution, made Basumati a party in the proceedings, and attempted to proceed against the same property in Basumati's hands, on the ground that Basumati's purchase was subject to the charge. Basumati then filed the objection, which is the subject of the present appeal, objecting that she had purchased the property free from incumbrances, and execution could not, in any event, be taken out against her. This objection failed before the learned Sub-ordinate Judge, who held that only the right, title and interest of the judgment-debtor had passed to the auction-purchaser, and that, having regard to the circumstances of the case, Basumati, despite the absence of any reference in the sale proclamation, must have had knowledge of the fact that the property was charged under the decree.

Now, in appeal three points have been taken.

The first is, that the decree for future maintenance is not capable of execution even against the judgment-debtor, and that Harbansi could realise arrears of future maintenance only by a fresh suit.

Secondly, that there being no evidence of notice, it must be held that the sale was without notice of the charge, and, consequently, the auction-purchaser acquired the property free from the incumbrance, and that property could not be proceeded against further; the lien was transferred by the sale from the property to the surplus sale proceeds, and the judgment-debtor should not have been allowed to withdraw that amount.

Thirdly, it is urged that, as the appellant was no party to the decree, the decree could not, in any event, executed against the appellant as auction-purchaser, and against the appellant the decree-holder's remedy, if any, could only be by way of suit.

With regard to the first point, it appears to me to be well settled by authority, that a decree of this type can be executed for arrears of future maintenance and no fresh suit is necessary. As I have shown, the decree itself contains an express provision that the property would be earmarked for future maintenance, and that arrears of future maintenance could be realized by sale of that property. The decree was thus not a mere money decree but was itself a decree for sale. This point has been expressly considered by a Full Bench of the Calcutta High Court in Ashutosh Banerji v. Lukhimoni Debya where it was definitely held that future maintenance awarded by a decree when falling due can be recovered in execution of that decree without further suit. That decision has been followed by this High Court in several cases, amongst which I may refer to Hari Sankar Rai v. Mussammat Tapai Kuer*, and a passage in the well-known case of Srimati Sabitri Tkakurain v. Mrs. F.A Savi where their Lordships' observed: “As regards the future maintenance…………the compromise does not expressly say that the liability of the defendant in these respects can be enforced in the Execution Department, but there is nothing to prevent the Court from passing an executable decree for that as well.” In my opinion there is no substance in the first contention.

I come now to the second point, that the purchase was not subject to the charge. Mr. Sarjoo Prasad for the respondent has argued that where the charge is created by a decree, the purchaser is bound by the charge irrespective of any question of notice, and the question of notice does not arise.

Section 100 of tile Transfer of Property Act, as amended by Act XX of 1929, contains an express provision that

“save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.”

Prima facie, therefore, this being a charge created subsequent to the amendment of 1929, it would appear that the question of notice is material. Mr. Sarjoo Prasad, however, argues that section 100 has no relation to a charge created under a decree, since it refers only to charges created by act of parties or by operation of law. He has referred to a long series of decisions in which it has been held, that, where the charge is created by a decree, then the purchaser for value takes subject to the charge even where he had not had notice thereof. These cases are: Mina v. Bachchi Kuloda Prosad Chatterjee v. Jageshar Koer, Sashi Bhusan Ghose v. Bhupendra Nath Pal, Sathuluru Seetharamanujacharyulu v. Nara Venkatasubbamma, Hemlata Debi v. Bhowani Charan Roy, Bhoje Mahadev Parab v. Ganga Bai Mahadeo Prasad v. Anandi Lal and Chaudhari Fateh Ali v. Gobardhan Prasad. These cases, however, have all been considered and expressly dissented from in a Full Bench ruling of the Oudh Chief Court—Musammat Indrani v. Maharaj Narain. In that case the following question was expressly referred to a Full Bench:

“Where a particular right is charged on specific immoveable property by a decree of Court, can such right be enforced against a subsequent transferee for valuable consideration and without notice of the charge?”

The Full Bench unanimously answered that question in the negative, and that too, even though the case related to a charge created before the amendment of section 100 in 1929. Their Lordships remarked—“of course, under section 100, Transfer of Property Act, as it now stands, it is clear that a charge cannot be enforced against a purchaser for valuable consideration and without notice of the charge, but as in the present case the charge was created before section 100 was amended in 1929, the question arises whether the respondents are bound by the charge in favour of the appellant”. They were, further, of opinion that the amendment of section 100 by Act XX of 1929 was made with a view to make the intention of the section, as it then stood, clear, and not with a view to altering what was already the law on the subject. They were of opinion that there was no difference in principle between a charge created by a decree and one created by contract. In either case the charge would not be a transfer of an interest in the property.

It would be interesting to consider these various rulings in detail and to examine the question whether a charge created by a decree is or is not contemplated in section 100, Transfer of Property Act. In fact, however, this question does not actually arise in the present case, because the decree is not a contested decree but a decree upon compromise, and it has been held by this High Court that a contract between two parties is nevertheless a contract because it is embodied in a decree—see, C.J Smith v. A. Kinney, Official Trustee of Bengal. It will follow that a charge created by a decree in pursuance of an agreement between the parties would be a charge created by act of parties, and, consequently, one contemplated in section 100 of the Transfer of Property Act. With regard, however, to the general question, I would like to express my own personal view, which is that the Full Bench case of Musammat Indrani v. Maharaj Narain is correct, and the other rulings, which have been cited, the reasoning of which I find in some places very difficult to follow, have taken and erroneous view.

The question with regard to notice has to be decided in this case. Upon that question, however, I am decidedly of opinion that the appellant, having regard to all the circumstances, must be deemed to have had notice, and, therefore, to have purchased the property subject to the charge. I have pointed out that the appellant is the only surviving daughter of the judgment-debtor Jagdamb Singh. It is very difficult to believe that it was merely by a coincidence that the property was purchased by the judgment-debtor's own daughter. Then, there is the fact that the judgment-debtor himself withdrew the very large surplus sale proceeds. It has been argued for the appellant that it was quite open to the decree-holder to give up the charge, and the sale-proclamation shows that she did intend to give it up and sell the property free from incumbrance. To my mind, it is, on the contrary, clear that was not the intention of the widow. The sale-proclamation was unfortunately worded, but the decree-holder attempted to get that set right even before the confirmation of the sale. Moreover, the Court, which conducted the sale, clearly expressed the opinion that it was only the interest of the judgment-debtor which had been sold. I have no doubt that the learned Sub-ordinate Judge is right in his view that all the circumstances of the matter were known to the appellant. The charge was created by the very decree in execution of which the property was sold and purchased. In the circumstances I would uphold the finding that the appellant must be deemed to have had notice. The property was, therefore, purchased by her subject to the charge.

The last question is whether the decree could be executed against the appellant who was not a party to it. On that point there is an authority in Durga Prasad…Objector v. Mt. Tulsa Kuar…Decree-Holder .. There it was held, in a case very similar to the present, that execution could proceed against the property charged in the hands of the auction-purchaser in a previous execution. It is true that one of the grounds given in that case for their Lordships' decision was, because section 100, they considered, did not apply to a charge created by a decree. They further pointed out that Order XXXIV, rule 14, of the Civil Procedure Code had no application, as it was not a case of executing a decree obtained upon the basis of a mortgage or charge, but of executing a decree which created a charge which did not exist prior to the decree. I have not found it necessary to examine in detail the first of these grounds, and I have indicated that there may be doubt whether it is correct; but, it appears to be clear, in any case, that the decree in the present case can be enforced by execution, as it was not a mere money decree but was itself a decree for sale.

It seems clear that though this decree could not, of course, be executed against the appellant personally, nevertheless once it is held that it could be executed against the judgment-debtor, then it follows that it can also be executed against the auction-purchaser, as representative of the judgment-debtor, to the extent of the property purchased by her subject to the charge. Section 47 of the Civil Procedure Code includes not only the parties to the suit but also their representatives, and it has been held in Ishan Chunder Sirkar v. Beni Madhab Sirkar that the word “representative” in section 47 is used in a wide sense and will include, as a representative of the judgment-debtor, the auction-purchaser to the extent of the property received by him.

In my view there is no substance in any of the three contentions put forward. The appeal, therefore, fails and must be dismissed with costs.

Varma, J.:— On the facts and circumstances-mentioned by my learned brother, I have no doubt in my mind that the appellant must be deemed to have notice of the charge on the property. The other points urged in appeal are covered by the authorities, as mentioned by my learned brother. I would, therefore, dismiss the appeal with costs.

S.A.K

Appeal dismissed.