# Matajog Dobey v. H. C. B/UJri Chandrast/chara Ai1ar ]

- **Citation:** [1955] 2 S.C.R. 938
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 183 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/matajog-dobey-v-h-c-b-ujri-chandrast-chara-ai1ar-1273
- **Pages:** 17

## Headnote

1955
Matajog Dobey
v.
H. C. B/UJri
Chandrast/chara
Ai1ar ].
1955
938
SUPREME COURT REPORTS
[1955J
plaint took the view that there was no use in proceeding against him alone, as
the main attack was
directed
against
the
Income-Tax
Officials.
No such
grievance was urged, before the High Court and it is.
not raised in the grounds for special leave.
We hold that the orders of the High Court are correct and dismiss these two appeals.
MERLA RAMANNA
fl.
NALLAPARAJU AND OTHERS.
[BHAGWATI,
VENKATARAMA
AYYAR and
B. P. SINHA JJ.1
Court, Pou1er of-Suit to set aside sale held in excessive execution·
of the decree-Afaintainability-Plaint, if may be treated as an execution application-Lin1itation-lnherent jurisdiction of court to whose
jurisdiction the subject-matter of the
decree is
transferred-Failure
to raise objection at the earliest stage-Waiver-Code of Civil Procedure (Act V of 1908), s. 47-lndian Limitation Act (IX of 1908),
Art;. 165, 166, 181.
The appellant \Vas the assignee of a mortgage dated 14-12-1911~
cxec.itcd by A, \.vhich con1prised lands belonging to the mortgagor
and also a mortgage executed by the respondents in
his favour on
19-7-1909.
1"he app..:llant
instituted a suit in the court of the Subordinate Judge of l(akina<la, for the recovery of the arpount due on
the mortgage, dated 14-l~-1911, and prayed for sale of the hypotheca.
1"he respondents were impfcaded as defendants but did not appear.
The s1_1!t \Vas <lccreed ex parte, an<l in execution of the decree, the
propcrtie'> of
th~ respondents, 1nortgage<l to A on 19-7-1909, were
brought t0 saie, an<l pun.:haseJ !:y
the
decree-hol<ler.
The respondents then instituted the present suit in the District Court of East
(~odavari \vhich then had jurisdiction O\'Lr the properties in suit, for
a
declar~uion that the decree obtained by the appellant \Vas fraudulent and inupcrative and could not affect their title. The plaint was
later on a1nended and a prayer added that the properties might be
partitioned and the respondents put in separate possession of their
sb~re. The trial Judge dis1nisscd the suit and the District Court in
appeal affirn1ed his decision. Before the High Court in second appeal
it \Va.s contendL·:l for the first
time that the decree in question did
not di~ect a sale of the mortgaged properties but a sale of the mortgagee's rights under the mortgage deed dated 19~7-1909 and as such
the sale of the properties v.'a::; void.
The High Court having called
for a finding from the
District Court as to what was sold, it was
2S.C.R.
SUPREME COURT REPORTS
939
found by that Court that the decree had really directed a sale of the
mortgagee's rights and not of the properties mortgaged and that there
was excessive execution. It was, however, of opinion that the point
should have been taken before the executing court and .the suit in
so far a:; it claimed relief on the basis
of excessive execution was
barred under s. 4 7 of the Code of Civil Procedure. The High Court
declined to entertain the objection that the suit was barred under s.
47 as it had not been taken in the written statement and was raised
for the first time in second appeal, and decreed the respondent's suit.
It was contended for the appellant that the High Court should have
entertained the objection and held that the suit was so barred.
Held, that the appellant should be permitted to raise the contention.
The point relating to excessive execution had never been
specifically raised except before the High Court and the allegations
in the plaint were vague and obscure. It is a pure question of law
which requires no further investigation of facts and was understood
and debated as such by the parties before the District Court.
That it was well settled that the question whether an execution
sale was in excess of the decree and. therefore, not warranted by it
could be raised as between the parties only by an application under
s. 47 of the Code before the executing court and not by a separate
suit.
f. Marret v. Md. K. Shi

## Text

1955
Matajog Dobey
v.
H. C. B/UJri
Chandrast/chara
Ai1ar ].
1955
938
SUPREME COURT REPORTS
[1955J
plaint took the view that there was no use in proceeding against him alone, as
the main attack was
directed
against
the
Income-Tax
Officials.
No such
grievance was urged, before the High Court and it is.
not raised in the grounds for special leave.
We hold that the orders of the High Court are correct and dismiss these two appeals.
MERLA RAMANNA
fl.
NALLAPARAJU AND OTHERS.
[BHAGWATI,
VENKATARAMA
AYYAR and
B. P. SINHA JJ.1
Court, Pou1er of-Suit to set aside sale held in excessive execution·
of the decree-Afaintainability-Plaint, if may be treated as an execution application-Lin1itation-lnherent jurisdiction of court to whose
jurisdiction the subject-matter of the
decree is
transferred-Failure
to raise objection at the earliest stage-Waiver-Code of Civil Procedure (Act V of 1908), s. 47-lndian Limitation Act (IX of 1908),
Art;. 165, 166, 181.
The appellant \Vas the assignee of a mortgage dated 14-12-1911~
cxec.itcd by A, \.vhich con1prised lands belonging to the mortgagor
and also a mortgage executed by the respondents in
his favour on
19-7-1909.
1"he app..:llant
instituted a suit in the court of the Subordinate Judge of l(akina<la, for the recovery of the arpount due on
the mortgage, dated 14-l~-1911, and prayed for sale of the hypotheca.
1"he respondents were impfcaded as defendants but did not appear.
The s1_1!t \Vas <lccreed ex parte, an<l in execution of the decree, the
propcrtie'> of
th~ respondents, 1nortgage<l to A on 19-7-1909, were
brought t0 saie, an<l pun.:haseJ !:y
the
decree-hol<ler.
The respondents then instituted the present suit in the District Court of East
(~odavari \vhich then had jurisdiction O\'Lr the properties in suit, for
a
declar~uion that the decree obtained by the appellant \Vas fraudulent and inupcrative and could not affect their title. The plaint was
later on a1nended and a prayer added that the properties might be
partitioned and the respondents put in separate possession of their
sb~re. The trial Judge dis1nisscd the suit and the District Court in
appeal affirn1ed his decision. Before the High Court in second appeal
it \Va.s contendL·:l for the first
time that the decree in question did
not di~ect a sale of the mortgaged properties but a sale of the mortgagee's rights under the mortgage deed dated 19~7-1909 and as such
the sale of the properties v.'a::; void.
The High Court having called
for a finding from the
District Court as to what was sold, it was
2S.C.R.
SUPREME COURT REPORTS
939
found by that Court that the decree had really directed a sale of the
mortgagee's rights and not of the properties mortgaged and that there
was excessive execution. It was, however, of opinion that the point
should have been taken before the executing court and .the suit in
so far a:; it claimed relief on the basis
of excessive execution was
barred under s. 4 7 of the Code of Civil Procedure. The High Court
declined to entertain the objection that the suit was barred under s.
47 as it had not been taken in the written statement and was raised
for the first time in second appeal, and decreed the respondent's suit.
It was contended for the appellant that the High Court should have
entertained the objection and held that the suit was so barred.
Held, that the appellant should be permitted to raise the contention.
The point relating to excessive execution had never been
specifically raised except before the High Court and the allegations
in the plaint were vague and obscure. It is a pure question of law
which requires no further investigation of facts and was understood
and debated as such by the parties before the District Court.
That it was well settled that the question whether an execution
sale was in excess of the decree and. therefore, not warranted by it
could be raised as between the parties only by an application under
s. 47 of the Code before the executing court and not by a separate
suit.
f. Marret v. Md. K. Shira.zi & Sons
(A.LR. 1930 P. C. 86),
Venknt.?chalapathy Ai yen v. Perumal Ai yen ( [ 1912] M.W.N. 44 ),
Biru Mahata v. Shyama Charan Khawas ( f18951 I.LR. 22 Cal. 483),
Abdul Karim v. Islamunnissa Bibi (f19161 I.LR. 38
All. 339) and
Lakshminarayan
v.
Laduram
( [ 1931 J A.LR.
1932
Born.
96),
approved.
That the court, however, had the power to treat the plaint in
the suit as an application under s. 4 7 subject to any objection as to
limitation or jurisdiction.
That ~he application was not barred under Art. 165 as it applied only to applications for restoration to possession by persons
other than judgment-debtors and had no application to the present
case.
Vachali Rohini v. Kombi Aliassan ( [ 1919] I.LR. 42 Mad. 753 ),
Ratnam Aiyar v. Krishna Doss Vital Doss ( [1897] I.LR. 21 Mad.
494), Rasul v. Amina ([1922] I.LR. 46 Born. 1031) and Bahir Das
v. Girish Chandra ([1922] A.LR. 1923 Cal. 287), approved.
Nor could Art. 166 apply since it had application only
where
the sale was voidable and not void and had to be set aside. That the
article applicable to a case of a void sale such as the present was
Art. l R 1 of the Indian Limitation Act .
. Seshaf!iri Rao v. Srinivasa Rao (f 1919] I.LR. 43 Mad.
313),
Ra7agopaltt'r v. Ramanujachariar ([1923] l.L.R. 47
Mad.
288),
Monmothanath Chose v. Lach mi Devi ( [1927] I.LR. 55
Cal. 96),
Nirode Kali Roy v. Hart:ndra Nath (I.L.R. [1938] 1 Cal. 280), and
5·-85 S.C. Iudia/59
1955
M1rla RamaMa
v.
N allapcraju
and otkrs
1955
Mn/a Ra...,...
v.
Nollaparaju
and oJ/rlr.s
SUPREME COURT REPORTS
[1955]
Ma We Gyan v. Maung Than Byu (A.LR. 1937 Rang.
126), ap
proved.
That the starting point of limitation for
an
application under
Art. 181 would be the date of dispossession by the purchaser and not
the date of the void sale which had no
existence
in law and the
plaint in the present suit, treated as an application, having been filed
within 3 years of such dispossession was in time.
Chengalraya v. Kollapuri (A.LR. 1930 Mad. 12), approved.
1'hat the District Court of East Godavari to \vhose jurisdiction
the properties had been transferred before the present suit was instituted had by reason of such transfer
acquired an inherent jurisdiction over them and if it entertained an application for
executior,
with reference to them such action
was no more than an irregula.r /
assumption of jurisdiction and no objection to
jurisdiction having
been taken by the appellant at the earliest opportunity he must be
deemed to have waived it and, consequently, there was no legal bar
to treating the plaint as an execution application under s. 47 of the
Code.
Balakrishnayya v. Linga Rao (I.L.R. [1943] Mad. 804), applied.
Case~la w discussed.
C1v1L
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 183 of 1952.
Appeal
by special
leave from the
Judgment and
Decree dated the 16th day of February, 1950 of the
Madras High Court in Second Appeal No. 1826 of
1945 from Original Decree dated the 16th March,
1945,
of the Court of District Judge,
East Godavari
at Rajahmundry in A.S. No. 32 of 1943 arising out of
the Decree dated the 31st October, 1942, of the Court
of Sub-Judge, Rajahmundry in Suit No. 17 of 1940
and O.S. No. 39 of 1939.
B. Somayya (K. R. Chaudhury and Naunit Lal,
with him) for the appellant.
K. S. Krishnaswamy Aiyangar, (K. R. Krishnaswamy, with him) for respondents Nos. 1 to 4.
1955.
November
4.
The
Judgment
of
the
Court was delivered by
VENKATARAMA
AYYAR
J.-This
IS
an appeal by
special leave against the judgment of the Madras High
Court in a second appeal which reversed the concurrent
judgments of the .courts below, and granted a decree
25.C.R.
SUPREME COURT REPORTS
941
in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of
the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres
12 cents out of a parcel of
land of the extent of 40 acres 47 cents in the village
of Nandarada, with mesne profits, past and future.
All these lands measuring 543 acres 65 cents were
purchased
by five co-sharers
on 5-6-1888
under two
sale deeds,
Exhibits P and P-1. One of these shares
of the extent of about 218 acres was, at the mateiral
dates, held in common by·· two brothers, Rangaraju
and Kumara, the former owning 136 acres 45 cents
and the
latter 81
acres 45 cents.
On 19-8-1908
Kumara executed a simple mortgage, Exhibit Q, over
81 acres
45 cents belonging to him for Rs. 1,000 in
favour of Nallapparaju, who
with his
undivided
brother, Achutaramaraju, held a share in the two
parcels
of land aforesaid
in Kalavacherla and Nandarada.
On 19-7-1909
both Rangaraju and Kumara
executed a mortgage, Exhibit A, for Rs. 2,000 over
all the 218 acres belonging to them in favour of Achutaramaraju. On
4-6-1910
Kumara again created a
mortgage over 81 acres 45 cents belonging to him,
Exhibit Q-1 for Rs. 2,500 in favour of Achutaramaraju. On
14-12-1911
Achutaramaraju
executed
a
mortgage for Rs. 14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held
in full
ownership as co-sharer, and also the mortgage
right which he -held over the properties belonging to
Rangaraju and Kumara under the three mortgage
deeds, Exhibits Q, A and Q-1. On 29-8-1920 Kumara
sold the 81 acres 45 .cents belonging to him and comprised
in
the
mortgages
aforesaid
to Achutaramaraju for Rs. 11,000 as per Exhibit G, and thereby the
two deeds, Exhibits Q and Q-1
became completely
discharged and Exhibit A to the extent of the half
share of Kumara. The position then was that Achutaramaraju became the owner of 81 acres 45 cents out
of the properties
mortgaged under Exhibit A, and
continued to be a simple mortgagee as regards the
rest of them to the extent of half the amount due
therein.
By virtue of section 70
of the Transfer of
1955
Merla RmnanM
v.
N allaparaju
and others
V1nkatarama
AJ7ar ].
1955
Mtr[a Ramantt4.
v.
N al/a/)araju
mu/ others
Vtnkatarama
Ayyar ].
942
SUPREME COURT REPORTS
[1955]
Property Act, the sale under Exhibit G would enure
for the benefit of the mortgagee, Merla Agastayya,
being an accession
to the interest
of
his
mortgagor.
On 20-1-1924
the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S.
No. 25 of 1927 on the file of the court of the Subordinate
Judge of Kakinada to recover
the
amount due
thereon by
sale
of the hypotheca. Achutaramaraju,
the mortgagor,
and the members of his family were
defendants 1 to 4 in that suit. Kumara · was impleaded
as the 14th
defendant and Rangaraju and his son
as
defendants 15 and 16. In the plaint, it was alleged that
the properties comprised in the mortgage deed, Exhibit C,
consisted of the properties belonging to the
mortgagors in full
ownership as
co-sharers and also
of the mortgage right under Exhibits Q, A and Q-1.
Then there was an allegation that defendants 1 to
4
had themselves
purchased the
mortgaged
properties
"towards discharge of the first defendant's mortgage
debts".
As a statement of fact,
this was not accurate,
because the purchase by
Achutaramaraju
was only of
81 acres 45 cents belonging to Kumara
and
the
remaining properties continued to be held by Rangaraju,
and
Achutaramaraju was
only
a
mortgagee
thereof under
Exhibit
A.
There were
the further
allegations that defendants
14 to 16 were impleaded
as parties because they were in possession of the properties, and that they were the predecessors-in-title in
respect of the properties which were mortgaged under
Exhibits Q, A and Q-1. Then there was the general
prayer for the sale of the properties.
The mortgagors, defendants 1 to 4, entered into a
compromise with the plaintiff, while defendants 14 to
16 remained ex parte.
On 31-1-1931
the suit was decreed in terms of the compromise as against defendants 1 to 4 and ex parte as against defendants 14
to
16, and a final
decree was
passed
on 6-11-1932. On
23-8-1934
the decree-holder filed
E.P. No. 99 of
1934
praying for the sale of the hypotheca including the
properties
mentioned
in Exhibit
A.
Defendants
15
and 16 then intervened, and filed an objection to
2S.C.R.
SUPREME COURT REPORTS
943
their being sold on the ground that the mortgage had
been discharged in 1923, and that the ex parte decree
against
them had
been
obtained
fraudulently.
This
application was rejected by the Subordinate Judge on
26-8-1935, and an appeal against this order to the
High Court, Madras was also dismissed on
1-9-1938.
Meanwhile, 163 acres 18 cents out of the properties
mortgaged under Exhibit
A,
of which
81 acres 86}
cents belonged to Rangaraju, were brought to sale. on
the 14th and 15th April, 1936, and purchased by the
decree-holder
himself. The
sale
was
confirmed on
26-6-1936,
and possession
taken on 15-12-1936. But
before
possession was taken, on 14-12-1936 Rangaraju
and his sons instituted O.S. No. 268 of
1936 in the
District Munsif's Court, Rajahmundry for a declaration that tl1e decree in O.S. No. 25 of 1927 had been
obtained fraudulently,
and that the decree-holder was
not entitled to execute the decree as against their properties.
An objection
was taken to
the
jurisdiction
of the Court of the District Munsif to try this suit,
and eventually, the plaint was returned to be presented
to the proper court. Thereupon, they instituted on
7-8-1939 the present suit, 0.S. No. 39 of 1939 on the
file of the District Court, East Godavari for a declaration that
the decree in 0.S. No. 25
of 1927 was
obtained by suppressing service of summons, and was
therefore void and .could not affect their title to 136
acres 45 cents which were mortgaged under Exhibit
A. The suit was transferred to the court of the Subordinate
Judge of Rajahmundry,
and was numbered
as O.S. No. 79 of 1940.
In his written statement, the appellant denied that
the decree in O.S. No. 25 of 1927 was obtained fraudulently,
and
contended
that
the present suit was
barred by limitation. He also pleaded that as he had
purchased the properties in execution of the
decree
and obtained possession thereof, the suit which was
one for a bare declaration that the decree was void and
inexecutable was not maintainable.
It must be mentio;1ed that while 81 acres 86! cents of land belonging
to Rangaraju and his sons had been sold on the 14th
and 15th April, 1936, their remaning properties of the
1955
Merla Rsmimna
, ..
Nal/llparqju
and othns
Venkatarama
Ayyar J.
1955
Merla Ramanna
v.
NaUaparaju
and others
Vfnkatarama
Ayyar J.
944
SUPREME COURT REPORTS
[1955)
extent of 54 acres 58i cents were sold after the institution of O.S. No. 268 of 1936 in the court of the
District Munsif, Rajahmundry. In view of the objections aforesaid, the plaintiffs amended the plaint by
adding a prayer that 136 acres 45 cents out of the
total of 543 acres 65 cents in schedule A and belonging to them might be partitioned and put in their
separate possession.
The Subordinate Judge of Rajahmundry dismissed
the suit on the ground that no fraud had been established, and that the suit was barred by limitation in
so far as it sought to set aside the decree on the
ground of fraud. The
plaintiffs
appealed
against
this judgment to the District Court of East Godavari,
which
by
its
judgment
dated
16th March,
1945
affirmed the
decree of
the
Subordinate
Judge.
The plaintiffs then preferred Second Appeal No. 1826
in the High Court, Madras. There, for the first time
the contention was pressed
that the decree in O.S.
No. 25 of 1927 on its true construction directed a sale
only of the mortgage rights which Achutaramaraju
had over the A schedule properties, and that the sale
of
the
properties
themselves
in
execution of that
decree was in excess of what the decree had directed,
and was therefore void, and that the plaintiffs were
accordingly
entitled
to
recover
possession
of
those
properties
ignoring
the sale.
Satyanarayana
Rao,
J.
who heard the appeal, construed the plaint as sufficiently raising this question and issue (2) (b) as covering this contention,
and accordingly directed the District Judge to return a finding on the question as to
whether the sale of the properties was warranted by
the terms of the decree. The bistrict Judge of East
Godavari to whom this issue was referred,
held
that
the decree directed the sale of only the mortgage
rights of Achutaramaraju under Exhibit A, and that
the sale of the properties themselves was not in accordance with the decree.
But he further held that
this was an objection relating to the execution of the
decree. which could be agitated only before the executing court, and that a separate suit with reference
to that matter was barred under section 47, Civil
2S.C.R.
SUPREME COURT REPORTS
945
Procedure Code. On this findings, the second appeal
came up for final
disposal
before
Satyanarayana
Rao,
J. who agreed with the District Judge that
the sale of the properties was not authorised by
the decree, and was
therefore void.
But he declined to entertain
the
objection
that the
suit
was
barred bv
section 47,
Civil Procedure Code,
on the ground that it had not been taken in the
written statement, and was a · new contention preferred for the first time at the stage of second appeal.
In the ·result, he granted a decree for partition and
delivery qf 136 acres 45 cents out of the properties
mentioned in schedule A to the plaintiffs,
and mesne
profits, past and future. Against this judgment, the
defendant prefers the present appeal, and insists that
the suit is liable to be dismissed as barred by s'ection
47, Civil Procedure Code.
On behalf of the appellant, it was contended by
Mr. Somayya that the question whether having regard to
section 47
the
suit
was
maintainable was
argued before the learned Judge before he called for
a finding, and that it ought to have been therefore
considered on the merits, and that, in any event, as
it was a pure question of law and went to the root
of the matter, it ought to have been entertained. On
behalf of the respondents, Mr. Krishnaswami Iyengar
vehemently
contends
that
as
the
objection
to the
maintainability of the suit based on section 47 was
not taken in the written statement, the learned Judge
had a dis.cretion whether he should permit the point
to be raised for the first time in second appeal or not,
and that we should not interfere with the exercise of
that discretion in special appeal. The basis on which
the suit has now been decreed is that the decree in
O.S. No. 25 of 1927 properly construed directed only
a sale of mortgage rights under Exhibit A and not of
the properties, but it must be conceded that this point
does not distinctly emerge on the face of the plaint.
It is true that there are allegations therein which
might be read
as comprehending that question, but
they are vague and elusive, and what is more, . this
contention was not argued either in the court of the
1955
M<rla Ramanna
v.
N allaparaju
and others
V enkatarama
Ayyar ].
1955
Mirta Ramanna
v.
JV allajJMaju
and others
V tnkatarama
Ayyar J.
946
SUPREME COURT REPORTS
[1955]
Subordinate Judge of Rajahmundry or in the District
Court of East Godavari, and it is only in second appeal
that the
question
appears
to have been first
thought of in this form. Though we are not prepared
to say
that the
allegations in the plaint are not
suiliciei:t to ·-:over
this point, we are of the opinion
that they are so obscure that it is possible that the
appellant might have missed their true import, and
omitted to plead in answer thereto that the suit was
barred by section
47. Apart from this, it is to be
noted that this point does not involve any fresh investigation of facts.
Indeed, when the matter was
before the District Judge in pursuance of the 01"' er
of the High Court calling for a finding, coum" [ on
both sides
understood it as involving a
decisill11
on
this point as well, and the argument proceeded on
the footing
that i.t was a pure question of law involving no further enquiry on facts.
We have therefore
permitted
the
appellant
to raise
this
contention.
Mr. Somayya for the appellant does not challenge
the fine.ling of the District Court confirmed by the High
Court that the decree directed only the sale of the
mortgage rights of Achutaramaraju under Exhibit A,
but he contends that the sale in execution of that
decree of not merely the mortgage rights unc.ler Exhibit
A but
of
the
properties
themselves
was
excessive
execution
against which
the
judgment-debtc:ir was
entitled to obtain relief by application to the execution
court, and
that a separate
suit with reference
thereto would be barred under section 47, Civil Procedure Code.
It is well settled that when a
sale in
execution of a decree is impugned on the ground that
it is not warranted by the terms thereof, that question could be agitated, when it arises
between parties
to the decree, only by an application
under section
47,
Civil Prnrcdure Code and not in a separate suit.
In /. Marret v. Md. K. Shirazi & Sons('} the facts were
tl 1at
Jil order was made by the execution court directing, contrary to the terms of the decree, payment of
a certain fund to the decree-holder. A separate suit
(l) A.!.R. 1930 P.C. 86.
•
I
~
I
2S.C.R.
SUPREME COURT REPORTS
947
having been
instituted
by
the judgment-debtor for
recovery of the amount on the ground that the payment was not in accordance with the decree, it was
held by the Privy Council that the action was barred
under section 47. A case directly in point is Venkatachalapathy Aiyen v. Perumal Aiyen(1 ). There, the suit
was to enforce a mortgage which related both to properties
held in
ownership
by the
mortgagor and
mortgage rights held by him. In execution of the
decree passed
therein,
the
properties themselves
and
not merely the mortgage rights wer sold. The judgment-debtor
then sued
for a declaration that what
was sold was only the mortgage right and to recover
possession of the properties. It was held that such a
suit was barred under section 47. Vide also the decisions in Biru Mahata v.
Shyama Charan
Khawas( 2 ),
Abdul Karim v. Islamunnissa
Bibi( )
and Lakshminarayan
v. Laduram(').
The
position is, in our
opinion, too well settled to be open to argument, and
it must accordingly be held that the present suit is
barred under section 47, Civil Procedure Code.
That, however, does not conclude the matter. Section
47,
clause
(2)
enacts that "the Court may,
subject to any · objection
as to limitation or jurisdiction, treat a proceeding unde·r this section as a suit
or a suit as a proceeding .... ". Under this provision,
this Court has the power to treat the plaint presented
on 7-8-1939 as an application under section 47 provided that on that date an application for the relief
claimed was not barred by limitation, and provided
further that the court in which it was filed was competent to execute the decree. On the question of
limitation, the relevant dates are the 14th and 15th
April, 1936, when 81 acres 86t cents belonging to the
plaintiffs were sold, and 15th December, 1936, when
possession was taken thereof through court. As regards
the remaining properties,
the exact date on which
they were sold does not appear on the record, but it
is sufficient for the present purpose that it was subsequent to the institution of O.S. No. 268
of 1936 on
(1) [1912] M.W.N. 44.
(2) [1895] I.L.R. 22 Cal. 483.
(3) [1916] I.L.R. 38 All. 339.
(4) [1931] A.I.R. 1932 Bom. 96.
1955
MerltJRant1JMa
v.
N al/a para ju
andothm
Venkatarama
Ayyar J.
1955
Meria l/amamuJ
v.
N al/aparajo
tint! others
Y enkata,.ama
A»ar ].
948
SUPREME COURT REPORTS
(1955}
the file of the District Munsif's Court Rajahmundry,
which was on 14-12-1936.
Now, the point for determination
is whether the pbint was barred by limitation
either under article 165 or article 166 of the Indian
Limitation Act, if it is treated as an execution application presented on 7-8-1939, or whether it was in
time under article 181.
Un<ler article 165, an application by a person dispossessed
of immovable
properties and disputing the
right of the decree-holder or purchaser at an execution sale to be put in possession must be filed within
30 days
of dispossession. If this
is the article applicable to the present proceedings, then it must be held
that the plaint treated· as
an execution application
was filed out of time. Jn Vachali Rohini v. Kombi
Aliassan('), a Full Bench of the Madras High Court
has
held, dissenting from
the
view
previously
expressed in Ratnam Aiyar v. Krishna Doss Vital Doss( 2 )
and following Abdttl Karim v. Mt. lslamunnissa Bibi('),
that this article applies only to applications for being
restored to posession
by
persons
other than
judgment-debtors, as
under Order XXI, rule 100, Civil
Procedure Code
and that applications
by
judgmentdebtors claiming relief on the ground that their properties had been erroneously taken in execution of
the decree are not governed by it. This view was
approved and followed in Rasul v. Amina(') and Bahir
Das v. Glrish Chandra('). We are of the opinion that
the law has been correctly laid down in the above
decisions, and that in accordance therewith, the present proceedings are not barred by article 165.
Coming next to article 166, an application by a
judgment-debtor to set aside a sale in execution of a
decree has, under that article, to be filed within 30
-days
of
the
sale. If the
present proceedings are
governed by this article,
there can be
no question
that they are
barred by limitation. But then, there
is abundant authority that article
166 applies only
when the sale is one which has under the law to be
(1) [1919l I.L.R. 42 Mad. 753.
(2) [1897] I.L.R. 21 Mad. 494.
(3) [1916 !.L.R. 38 All. 339.
(4) [1922] !.L.R. 46 Born. !031.
(5) [1922] A.J.R. 1923 Cal. 287.
•
2 S.C.R.
SUPREME COURT REPORTS
949
set aside as for example, under Order XXI, rules 89,
90 and 91, but that it has no application when the
sale
is
inoperative and void.
In Seshagiri Rao v.
Srinivasa Rao(1 ), the
appellant was a party to the
suit, but the decree had exonerated him from liability.
In execution of the decree, his three-fourths' share in
the
properties
was sold
on 26-1-1910
and purchased
by the decree-holder and possession delivered to him
on
16-12-1910.
The
appellant
then
filed a suit
on
25-7-1911
to set aside the sale on the ground that it
was in contravention of the decree and therefore void.
An objection having been taken by
the defendant
that the suit was barred under section 47,
the court,
while upholding the same, held that the plaint could
be treated
as
an application under that section if it
was in time as an execution :i.pplication, and the question arose for decision whether the application was
governed by article 166
or article 181
of
the
Indian
Limitation Act.
It was
held that as the sale was a
nullity, it ha<l not to be set aside under the law, and
therefore
the article applicable was article
181
and
not article 166. This statement of the law was approvcc\ by a Full Bench of the Madras High Court in
Rajagopa!ier v.
Ramanujachariar( 2 ). A
similar decision was given in Manmothanath. Chose v. Lachmi
Devi( ), wherein it was observed by Page, J. that the
sale being 'ioid need not have been set aside at all,
and the or<ler
to be passed was "in substance merely
a declaration that the sale was null and of no effect".
The question whether an application by a
judgmentdebtor
for
setting aside
a sale on the ground that
there was excessive execution and that the sale of his
properties was
in consequence void was governed by
article 166 or article 181 came up directly for consideration in Nirode Kali Roy v. Harendra Nath(4 ). In
holding th:it the application was
governed by
article
181, B. K. Mukherjea,
J.~ (as he then was) observed
that "article 166 must be confined to cases where the
sale is voidable only and not void when the execution
sale is a nullity, if a party files an application under
(l) [1919] I.L.R. 43 Mad. 313.
(3) [1927] I.L.R. 55 Cal. 96.
(2) [1928] I.L.R. 47 Mad. 288.
(4) [1938] I.L.R. I Cal. 280.
1955
Merla &manna
v.
N al la para ju
and others
V enkatarama
AyyarJ.
1955
M1rla Ramanna
v.
Na//aparaju
and othn-1
Yenkatarama
Ayyar).
950
SUPREME COURT REPORTS
[1955]
section 47 to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper article would be article 181 and not
article 166 of the Indian ·Limitation Act". The decisions in Seshagiri Rao v.
Srinivasa Rao( )
and Rajagopalier v.
Ramanujachariar( )
were again followed
in Ma_ We Gyan v. Maung Than Byu(8), wherein it
was held that if the execution sale was void, it was
not necessary for the applicant to have it set aside,
and that even if there was such a prayer, that would
not affect
the real nature of the
application which
was really "for an order directing the respondent to
.deliver property on the ground that there was no valid
sale". We are in agreement with these decisions, and
hold that when a sale in execution is
inoperative
and
void, an application by a judgment-debtor to have it
declared void and for appropriate reliefs
is governed
by article 181 and not article 166. On the findings of
the courts below
that the decree in O.S. No. 25 of
1927 properly construed authorised only the sale of
the mortgage rights
of Achutaramaraju under
Exhibit A and not the lands which were the subject-matter of that mortgage, the respondents were entitled
to apply to the court for delivery of possession of the
properties wrongly sold through process of court and
delivered to the appellant,
and
such
an
application
would be governed by article 181.
Then, there is the further question whether applying article 181, the plaint presented on 7-8-1939 was
within time under that article. As already stated, 81
acres 58! cents were sold on the 14th and 15th April,
1936. If the starting point of limitation is the date of
sale, then the application must be held to be barred,
unless the period during which the suit was pending
in the court of the District Munsif,
Rajahmundry,
is
deducted under section 14 of the Indian Limitation
Act. But if limitation is to be reckoned from the date
of dispossession, then the application would clearly
be in time. Under article 166, an application to set
aside a sale must be presented within 30 days thereof.
(I) [1919] I.L.R. 43 Mad. 313.
(2) (1923] l.L.R. 47 Mad. 288.
(3) A.LR. 1937 Rang. 126.
<
2 S.C.R.
SUPREME COURT REPORTS
951
But if the sale in question was void, and for that
reason article 166 becomes inapplicable, then the date
of the sale must vanish as the starting point of limitation, as it has no existence in law.' It is not until the
purchaser acting under colour of
sale interferes with
his possession that the person whose properties have
been sold is really aggrieved, and what gives him right
to apply under article 181
is such interference or dispossession and not the sale. As observed in Ma We
Cyan v. Maung Than Byu(1 ), such an application is
really one for an order for redelivery of the properties
wrongly taken possession of by the purchaser. If that
is the correct position, the right to apply arises by
reason of dispossession
and not of sale, and the starting point for limitation would be the date of dispossession. It was so held in Chengalraya v. Kollapuri (
2).
There, the properties of a party to the suit who had
been exonerated by the decree were sold in execution
of that decree on 8-1-1918 and purchased by the
decree-holder.
It was
found
that
he
took . actual
possession of the properties in
1919.
On 23-11-1921
the representatives
in interest of the exonerated defendant commenced proceedings to recover possession
of the properties from the decree-holder purchaser on
the ground that the sale under which he claimed was
void. It was held that the proper article of limitation applicable was article
181,
and that
time
commenced to run under that article from the date not
of sale but of actual dispossession, and that the proceedings were accordingly in time. We agree with
this decision, and hold that an application by a party
to the suit to recover possession of properties which
had been taken delivery of under a void
execution
sale would be in time under article 181, if it was filed
within
three
years
of
his
dispossession.
Therefore,
there is no legal impediment to the plaint filed on
7-8-1939
being treated
as
an application
under section 47, on the ground that it is barred by limitation.
The next question for consideration is whether the
present suit was filed in a court which had jurisdiction to execute the decree in O.S. No. 25 of 1927.
(1) A.I.R. 1937 Rang. 126
(2) A.I.R. 1930 Mad. 12.
1955
Mfr/a Raman11a
v.
Nllllaparaju
and ot/rns
V enkatarama
AyyarJ.
1955
Mtrla Ramanna
v.
Nallaparaju
and others
Venkatarama
AJ!)'ar J.
952
SUPREME COURT REPORTS
[1955]
That was a decree passed by the Subordinate Judge
of Kakinada, whereas the present suit was filed in the
District Court, East Godavari to which the court of
the
Subordinate
Judge of Kakinada
is
subordinate.
Section
38,
Civil
Procedure
Code
provides
that a
decree may be executed either by the court which
passed it or by the court to which it is sent for execution. The District Court of East Godavari is neither
the court which passed the decree in O.S. No. 25 of
1927 nor the court to which it had been sent for execution.
But it is common ground that when the preGodavari,
it
had
jurisdiction
over
the
properties,
sent suit was
·instituted in the District Court, East
which are
the
subject-matter of this
suit. It is true
that by itself this is not sufficient to make the District
Court of East Godavari the court which passed the
decree for purpose of section 38, because under section
37, it is only when the court which passed the decree
has ceased to have jurisdiction to execute it that the
court which
has jurisdiction
over
the
subject-matter
when the execution application
is presented can be
considered as the court which passed the decree. And
it is settled law that the court which actually passed
the decree does not lose its jurisdiction to execute it,
by reason
of the
subject-matter
thereof being transferred
subsequently
to
the
jurisdiction of another
court.
Viele
Seeni Nadan v. Muthuswamy Pillai('),
Masrab Khan
v.
Debnath Mali( ) and fagannath v.
fchharam ( ).
But does it follow from
this that the
District Court, East Godavari has no jurisdiction to
entertain the execution
application
in respect
of
the
decree in O.S. No. 25 of 1927 passed by the court of
the Subordinate Judge, Kakinada ?.
There is a long course of decisions in the High Court
of Calcutta that when jurisdiction over the
subjectmatter of a decree
is
transferred to another court,
that
court is also competent to entertain an application for
execution
of the decree.
Vide Latchman v.
Madan Mohun('), fahar v. Kamini Devi(') and Udit
Narayan v. Mathura Prasad('). But
in
Ramier v.
(!) [!9!9] T.L.R. 42 Mad. 82!. F.B.
(2) [!9<2] l.L.R. I Cal. ?89.
13) A.LR. 1925 Born. 414.
(ll [1880] l.L.R. 6 Cal. 513·
(5) [1900] I.L.R. 28 C,!. 238.
(6) [1908] l.L.R. 35 Cal. 974.
2S.C.R.
SUPREME COURT REPORTS
953
Muthukrishna Ayyar( 2), a Full Bench of the Madras
High Court has taken a different view, and held that
in the absence of an order of transfer by the court
which passed the decree, that court alone can entertain in application
for
execution
and not the
court
to
whose
jurisdiction
the
subject-matter has
been
transferred. This view
is supported by the decision
in Masrab Khan v. Debnath Mali( ). It is not necessary in this case to decide which of these two views
is . correct, because even assuming that the
op1mon
expressed in Ramier v. Muthukrishna Ayyar( 1 )
is correct,
the present case is governed by the principle laid
down in Balal(rishnayya v. Linga Rao( 3 ). It was held
therein that the court to whose jurisdiction the subject-matter of the decree
is transferred acquires
inherent jurisdiction over the same by reason of such
transfer, and that if it entertains an execution application with reference thereto, it would at the worst
be an irregular assumption of jurisdiction and not a
total absence of it, and if objection to it is not taken
at the. earliest opportunity, it must be deemed to have
been waived, and cannot be raised
at any later stage
of the proceedings. That precisely is
the position
here. We have held that the allegations in the plaint
do raise the question of excessive execution, and it
was therefore open to tlte
appellant
to have . raised
the plea that the suit was barred by section 47, and
then, there could have been no question of waiver.
We have, it is true, permitted the appellant to raise
the contention that the present suit is barred by section 47, and one of the reasons therefor is that the
allegations in the plaint are so vague that the appellant might have missed their true import. But that
is not a sufficient ground for relieving him from the
consequence which must follow on his failure to raise
the objection in his written statement. We agree with
the decision in Balakrishnayya v. Linga Rao(3 ), and
hold that the objection to the District Court entertaining an application to execute the decree in 0.S.
No. 25 of 1927 is one that could be waived and not
(I) 1932 I.L.R. 55 Mad. 801.
!2) I.L.R. 1942 I Cal. 289.
(3) l.L.R. 1943 Mad. 804.
1955
Merla Ramanno
v.
Nallaparaju
and others
Venkatarama
A)!Yar J.
1955
Mala Ramanna
v.
Nallaparaft
and otlurs
Vmkatarama
A.x>"' J.
954
SUPREME COURT REPORTS
(1955]
·having been
taken in the written statement is
not
now available
to the appellant. There is thus no
legal bar to our treating the plaint presented by the
respondents
on 7-8-1939
as
an execution
application
under section 47, and in the interests of justice, we
direct it to be so treated. But this should be on
terms. We cannot ignore the fact that it is the gross
negligence of the respondents at all
stages that has
been responsible for all the troubles. They did not
appear in the suit, ·and put forward their rights under
Exhibit A.
They intervened at
the
stage of execution, but their complaint was mainly that the ex parte
decree had been obtained by fraud, a plea which has
now been negatived. Even in this suit, they did not
press the plea on which they have
succeeded until
they came to the . High Court. Under the circumstances, we think it just that they
should be deprived of all claims for mesne profits down to this
date.
In the result, treating the plaint as an execution
application, we direct
that the properties mentioned
in schedule A to the plaint be partitioned and the
respondents put in possession of
126 acres 33 cents
in Kalavacherla village and of
10 acres
12 cents in
Nandarada village
in proceedings to be taken
in
execution of this order.
The respondents will be
entitled
to their
share of the net income attributable to 136 acres 45 cents aforesaid from this date
down to the date on which they are put in separate
possession thereof.
Subject to the modification of the decree of the
court below
as stated above,
this
appeal will stand
dismissed. The parties will, however, bear their own
costs throughout.