The only question then is if it can be deemed to have come into existence on the date when the suit was instituted. If the doctrine of relation back, as applied to the orders of adjudication can also be applied to the decrees passed in suits for maintenance, the appellant's position would be secure. It has been held by a Division Bench of this Court that a maintenance decree creating a charge on a specific immovable property mentioned in the plaint operates to give a charge to the plaintiff not merely from the date of the decree but from the date on which the plaint was presented : Seetharamanujacharyulu v. Venkatasubbamma (1930) 17 A.I.R. Mad. 824. The proposition settled by this case was not controverted by the learned Counsel for the respondent but it was argued that as the learned Judges were not dealing with a case of supervening insolvency it could not be of any assistance to the appellant. It is true that the contest in that case was between a widow and an auction-purchaser but I cannot see what difference in principle would it make if an Official Receiver is substituted for the auction-purchaser. The question in both the cases would relate to the date on which the charge should be deemed to have come into existence and it was this point which has been settled by that case.
Madras High Court
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Madras High Court
Katrapati Hanumayamma vs Official Receiver on 10 February, 1939
Equivalent citations: AIR 1940 Mad 749
Coram:
Abdur Rahman, J.
