Manohar Lall, J.These two Letters Patent appeals are from the decision of Reuben J., who dismissed the appeals of the appellants in the following circumstances.

2. The appellant Mt. Prem Kuer obtained a decree for past and future maintenance on 9-1-1928, against her mother-in-law, Mt. Rambarat Kuer. By this decree arrears of and future maintenance were declared a charge on the properties which have been styled as lots 1, 2 and 3 in these proceedings. The defendant, Mt. Rambarat Kuer, preferred an appeal against the decision in Title Suit No. 30 of 1926. The appeal was dismissed on 21-12-1928. But during the pendency of the appeal, the landlord of the raiyati holding, Lot No. 1, instituted a suit for recovery of arrears of rent, obtained a decree and in execution thereof purchased Lot No. 1 on 24-5-1928 and obtained delivery of possession on 17-11-1928 and thereafter transferred Lot No. 1 for consideration to the respondents in one of the appeals whom I shall hereinafter describe as the transferees.

3. The appellant executed her maintenance decree on 25-5-1929, against lots 2 and 3, and as the result of an auction sale these two lots were sold to the same landlords who transferred these lots to the respondents transferees, and the decree was satisfied. Future maintenance fell due and the decree holder again put the decree in execution seeking to sell lots 1, 2 and 3 in the year 1941 in Execution Case No. 75. Two objections were preferred by the landlords u/s 47 and by the transferees under Order 21, Rule 58,. Civil P.C., that the three lots could not be sold in execution firstly because the charge created by the decree was a charge for the realisation of the arrears of maintenance up to the date of the decree and not for future maintenance, secondly that Lot No. 1 having been sold in execution of a rent decree of the landlords could not be again sold, in the present execution, and thirdly, that the landlords and the transferees are bona fide purchasers of value without notice of the charge of the maintenance decree-holder, assuming that such a charge has been validly created.

4. Reuben J., in disagreement with the Courts below has come to the conclusion that the decree in Title Suit No. 30 of 1926 created a charge for future maintenance only, and this finding has not been challenged before us. All the Courts have found that the landlords and the transferees respondents are bona fide purchasers for value without notice, and, therefore, the charge created by the decree is not binding upon them. Hence these two Letters Patent appeals.

5. Mr. Dasu Sinha appearing for the maintenance decree-holder argues that the decree in which Lot No. 1 was purchased by the landlord was not a rent decree but merely a decree for money. Reuben J., however, has shown that this decree was a decree for rent, and further this identical question has been decided adversely to the appellant in a suit instituted by her for a declaration that this rent decree and the sale held thereunder were not binding upon her. It was then argued that the landlord auction-purchaser should have annulled the encumbrance, u/s 167, Bihar Tenancy Act, within one year of the date of the knowledge, and relisnce was placed upon the Full Bench decision in Mahodev Maharaj Vs. Jagdev Singh and Others, . But that decision is against this contention because I find it clearly stated in the judgment that

if the holding is sold in execution of a rent decree and the landlord himself purchases it, there is nothing to prevent him from ignoring the mortgage without formally annulling the encumbrance u/s 167, Ben Ten. Act of 1985. This was very clearly pointed out by Dawson Millar C.J. in Badlu Pathak and Others Vs. Sibram Singh and Others, .

The same view was reiterated by Sir Jwala Prasad in Sourendra Mohan Singh and Others Vs. Kunjbihari Lal Mander and Others, . I, therefore, overrule the first contention and would hold in agreement with Reuben J., that the appellant cannot be allowed to sell Lot No. 1 in execution of the maintenance decree for subsequent arrears.

6. Regarding lots 2 and 3, the argument of Mr. Dasu Sinha is that the provisions of Section 100, T.P. Act, have no application inasmuch as the charge created by a decree of the Court is not a charge created by operation of law or by act of persons, and, therefore, he contends that the finding that the landlord and the transferee purchased these two lots bona fide without notice of the charge is immaterial. In supports of his contention he relies upon Debendra Nath Giri Vs. Smt. Trinayani Dasi, where a Division Bench of this Court pointed out that a charge created by the decree of a Court is neither a charge created by act of persons or oreated by operation of law. This argument is well founded find must prevail.

7. The learned Government Advocate drew attention to the order-sheet of the executing Court by which Lot No. 2 was sold for Rs. 345 and Lot No. 3 for Rs. 3000 to Ram Anugraha Narain Singh, the respondent, and to order No. 10 dated 14-6-1929, that the appellant decree-holder put in a petition in which she prayed that out of the purchase money of Rs. 3345 she may be allowed to withdraw her decretal dues together with her maintenance up to baisakh 1336 fasli and after deducting the amount of court-fee due to the Government

the balances may be kept in deposit in the custody of the Court for regular payment of her maintenance allowance and the judgment debtor be restrained from withdrawing the surplus sale proceeds.

8. He, therefore, argues that the appellant has herself treated that her maintenance decree in future must operate on the balance of the money into which these to is have been converted by the execution sale and, therefore, she cannot follow the properties by executing the decree. This plausible argument completely loses sight of the subsequent orders of the executing Court which make it clear that on the objection of the judgment-debtor the claim of the decree-holder that the surplus amount may be kept in deposit in Court wan rejected by order No. 17 dated 16-7-1929 and order No. 23 dated 4-9-1929. The earlier argument of the learned Government Advocate would have been of some assistance to him if reliance could be placed on Section 39, T.P. Act but that section cannot be applied in the present case whore the right of maintenance of the appellant is no longer an indefinite right but has now been created a charge by a decree of the Court.

9. The position, therefore, is that tae transferee respondents have purchased lots 2 and 3.during the pendency of a litigation in which the right of the appellant to have her decree declared a charge on lots 2 and 3 was being, prosecuted and Section 100, T.P. Act, not being applicable the transferees have purchased, the properties subject to the right of the decree-holder to sell lots 2 and 3.

10. The learned Government Advocate contended that in view of the finding, that the purchasers had no notice of the charge, and the maintenance decree having been fully satisfied, in the execution case started for the levy of the-then decretal amount, no further charge can exist in law on these two properties. In my opinion, this argument is without any substance because even though the Courts have found that, the transferees had no notice of the charge and the maintenance decree, the auction purchaser, be he the landlord or the transferee, must be deemed to have constructive notice of the charge when they purchased in the execution of the very decree which has now been hold to amount to a charge decree for future maintenance also it cannot be successfully urged that the auction-purchaser had no notice of the decree. Again it may be possible to take the view that every time the decree-holder is proceeding by way of execution, it is a fresh decree that is being put into execution, that is to say, it is a decree for maintenance, creating a charge on a certain property of the judgment-debtor and entitling the decree-holder to realise the same by taking out execution, without the necessity for fresh suits after every default in the payment of the decree, and is in the nature of a composite decree which is not one single decree, but comprises as many decrees for payment and realisation by sale of the properties charged as there arc defaults I am quoting from p. 248 of Debendra Nath Giri Vs. Smt. Trinayani Dasi, .

11. In whatever way the matter is looked at, it seems to me that there is no escape from the conclusion that Lots Nos. 2 and 3 continue to remain for ever charged with the maintenance decree, and the transferee respondents cannot object to the sale of these two lots.

12. The result is that the appeals must be allowed in part and it must be hold that the appellant is entitled to sell lots 2 and 3, but the judgment of Reuben J. is affirmed with regard to the non-salability of Lot No. 1. The appellant is entitled to her costs from the transferees respondents in the two appeals of lots 2 and 3, Parties will bear their own costs as between the landlords and the transferees of Lot No. 1 and the appellant.

Agarwala Ag. C.J.

I agree.