Judgment : 1. This appeal is against the order passed by the Subordinate Judge, Ramanathapuram at Madurai in E.A.No.9 of 1985. 2. The petitioner has filed the petition contending as follows: The petitioner is the wife of the second respondent. The first respondent has obtained a decree in C.S.No.189 of 1982 against the second respondent and others for Rs.1,13,2649. The first respondent has proceeded against the second respondent alone for recovery of the amount due. The debt has been incurred by the second respondent for his bad habits, and it is known to the first respondent also. It is not binding on the petitioner viz., the wife of the second respondent. The second respondent has to maintain the petitioner, she being his wife. She requires a sum of Rs.300 towards maintenance. Since the second respondent is mentally unsound, he is unable to maintain her. Hence the petition for awarding a maintenance of Rs.300 to the petitioner and a charge over the properties attached by the first respondent. 3. The first respondent in his counter contends as follows: The allegation that the debt was incurred by the second respondent towards his bad habits is not true. The petitioner has colluded with the second respondent and has filed this application to defeat the rights of the first respondent. The first respondent cannot claim any right over the property brought for sale. The maintenance amount claimed by the petitioner cannot be determined in this application. No charge can be created on the property. 4. The second respondent remained ex parte. 5. On the above pleadings, the learned Sub Judge has passed an order declaring that the petitioner is entitled to a sum of Rs.300 per month towards maintenance payable by the second respondent, husband of the petitioner and a charge over the petition-mentioned properties was also ordered. 6. Aggrieved over the same, the first respondent has come forward with this appeal. 7. 6. Aggrieved over the same, the first respondent has come forward with this appeal. 7. The learned counsel appearing for the appellant would argue that the learned Subordinate Judge has committed an error in granting a decree for maintenance of Rs.300 in favour of the petitioner in this application filed in the execution side and no suit has been filed by the petitioner for maintenance against her husband and it is a collusive action taken by the petitioner and the 2nd respondent to defeat the rights of the first respondent and the order passed by the executing Court should therefore be set aside. According to the learned counsel, the suit has been filed in the year 1972 and attachment of the property was also made in the year 1972 and it is only in 1985, the petitioner has come forward with this application for declaration of a decree for maintenance and it not only a belated one, but also a collusive one since the petitioner and the second respondent are living together as husband and wife in the same house and the question of payment of maintenance therefore does not arise. The petition has been filed by the petitioner under Order 21, Rule 58 of the Code of Civil Procedure which provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Proviso (b) to this Rule 58 provides that where the Court considers that the claim or objection, was designedly or unnecessarily delayed, no such claim for objection shall be entertained. The executing Court has adjudicated the claim of the petitioner and has passed a declaration to the effect that the petitioner is entitled to maintenance of Rs.300 per month. The executing Court has adjudicated the claim of the petitioner and has passed a declaration to the effect that the petitioner is entitled to maintenance of Rs.300 per month. Probably, the executing Court has proceeded to decide the same in view of subclause (2) of Order 21, Rule 58 of the Code of Civil Procedure which provides as follows: (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit." But, it is to be noted that the claim of the petitioner seeking a charge is not in pursuance of a decree obtained by her. The petitioner is the wife of the 2nd respondent. If she wants to have a maintenance decree, she has to file a suit and she cannot invoke the provisions of Order 21, Rule 58 of the Code of Civil Procedure for the said purpose. It is more so when the petitioner and the second respondent are living as husband and wife in the same house. Whether she will be entitled to a decree for maintenance can be decided only in the suit and not in this Claim Application which she can file seeking a charge only if she had obtained a decree in a suit. But, the executing Court has granted a declaration that the petitioner is entitled to a maintenance charge since she is the wife of the second respondent. The executing Court has failed to consider that the payment of maintenance by her husband to his wife may not arise when the husband and wife are living together in the same house without any hitch or misunderstanding between them. Therefore, the declaration granted by executing Court cannot be sustained. Further, as already observed by me, proviso (b) to Order 21, Rule 58 provides that no claim application could be considered by the Court if the claim is designedly or unnecessarily delayed. The attachment having been made in the year 1972, why the petitioner has not chosen to challenge the same till the execution petition is filed by the first respondent for bringing the property attached in the year 1972 for sale, has not been explained by the petitioner. The attachment having been made in the year 1972, why the petitioner has not chosen to challenge the same till the execution petition is filed by the first respondent for bringing the property attached in the year 1972 for sale, has not been explained by the petitioner. She cannot plead ignorance of the same, since she was living with the second respondent during all these 13 years. The circumstances under which the petitioner has come forward with this application would show that her claim application is designedly or unnecessarily delayed. 8. In the result, the civil miscellaneous appeal is allowed setting aside the order passed by the learned Sub Judge. No costs.