Guha Ray, J. - (1.) The facts out of which this appeal arises are not ill dispute. They are briefly as follows:
(2.) Respondent No. 1 Krishna Bhamini Debi, widow of late Bibhakar Chatterji, obtained a decree against respondent No. 2 Amal Krishna Chatterji, her step-son, in Title Suit No. 268 of 1945. The decree was modified on appeal and this decree, so modified, is in the following terms: "The appellant, namely, Krishna Bhamini Debi will recover past maintenance for three years at the rate of Rs. 10/- per month or Rs. 630/- in all. She will also get maintenance at the same rate since Jaistha, 1351 B.S. The amount of court-fees payable by the appellant in the two courts should be recoverable by the Government from the respondent No. 1 alone and will farm a first charge on the property left by Bibhnkar Chatterji. There will also be a" second charge on the one-third share of the plaint lands for the maintenance of the appellant". It is this last sentence of the decree with which we are concerned in this appeal. Krishna Bhamini filed an execution petition which was registered as Title Execution Case No. 120 of 1948 for realisation of arrears of maintenance from Jaislha, 1351 B.S. to Aghrahayan, 1355 B.S. by attachment and sale of a half share of the properties mentioned in the schedule to the application which are identical with the property in suit. The fact that this property to the extent of one-third share was subject to a charge under the decree in execution of which the property was sold was not mentioned either in the application for execution or in the sale proclamation. A half share of the property was auction-purchased by the appellant for Rs. 1005/- (one thousand and five rupees) only on the 25-11-1950, and the sale was confirmed in due course. Then, Krishna Bhamini filed an application to execute the decree in respect of arrears of maintenance from Pous 1355 B.S. to Chaitra, 1359 B.S. against respondent No. 2 who is Amal Krishna Chatterji against whom Krishna Bhamini had obtained the decree and also the present appellant Jata Bhusan Chatterji who had auction-purchased a half share of the property in the previous execution sale. Her allegation in the application for execution was that Jata Bhusan was merely a benamdar of respondent No. 2 Amal Krishna. To this execution the appellant Jata Bhusan objected under Section 47 of the Code of Civil Procedure. In this objection he denies the benami nature of his purchase and asserts that he was a bona fide purchaser for value and his objection is two-fold, namely, first that Krishna Bhamini was not entitled to enforce the charge created by the decree in execution and secondly, that she was estopped from enforcing it after having put up the property to sale without disclosing the charge. The executing court found first that the appellant's purchase was not proved to have been benami and secondly that the charge was not legally enforceable in execution but was enforceable only by way of a suit and thirdly that the decree-holder had waived in the previous execution her right to enforce the charge. On these findings he allowed the appellant's objection under Section 47 ot the Code of Civil Procedure and dismissed the application lor execution. On appeal the lower appellate court confirmed the finding of the execution court that jata Biiusan was not a benamdar ol Amal Krishna but he found that the charge which had been created by a decree was enforceable in execution and that the mere fact that Krishna Bhamini did not mention the charge in her application tor execution did not amount to a waiver on her part nor did it estop her from enforcing the charge. On these findings he set aside the order of the executing court allowing the objection, allowed the appeal with the result that Jata Bhutan's objection under Section 47 of.the Code of Civil Procedure stood disallowed, and the execution case was directed to proceed. Jata Bhusan now appeals from this order.
(3.) The first question raised in this appeal is whether the charge that was created by the decree in favour of Krishna Bhamini is enforceable in execution. Mr. Lala on behalf of the appellant refers to Section 100 of the Transfer of Property Act and argues that, although the Calcutta decisions are against him, on a proper construction of the section as held in a number of cases to which I shall presently refer, the charge was not enforceable in execution.;