PETITIONER: MERLA RAMANNA Vs. RESPONDENT: NALLAPARAJU AND OTHERS. DATE OF JUDGMENT: 04/11/1955 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. CITATION: 1956 AIR 87 1955 SCR (2) 938 ACT: Court, Power of-Suit to set aside sale held in excessive execution of the decree-Maintainability-Plaint, if may be treated as an execution application-Limitation-Inherent 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 Proce- dure (Act V of 1908), s. 47-Indian Limitation Act (IX of 1908), Arts. 165, 166, 181. HEADNOTE: The appellant was the assignee of a mortgage dated 14-12- 1911, executed by A, which comprised. lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19-7-1909. The appellant instituted a suit in the court of the Subordinate Judge of Kakinada, for the recovery of the amount due on the mortgage, dated 14-12- 1911, and prayed for sale of the hypotheca. The respondents were impleaded as defendants but did not appear. The suit was decreed ex parte, and in execution of the decree, the properties of the respondents, mortgaged to A on 19-7-1909, were brought to sale, and purchased by the decree-holder. The respondents then instituted the present suit in the District Court of East Godavari which then bad jurisdiction over the properties in suit, for a declaration that the decree obtained by the appellant was fraudulent and inoperative and could not affect their title. The plaint was later on amended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their share. The trial Judge dismissed the suit and the District Court in appeal affirmed his decision. Before the High Court in second appeal it was contended for the first time that the decree in question did not direct a sale of the mortgaged properties but a sale of the mort- gagee's rights under the mortgage deed dated 19-7-1909 and as such the sale of the properties was void. The High Court having called for a finding from the District Court as to what was sold, it was 939 found by that Court that the decree bad 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 as it claimed relief on the basis of excessive execution was barred under s. 47 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. J. Marret v. Md. K. Shirazi & Sons (A.I.R. 1930 P. C. 86), Venkatachalapathy Aiyen v. Perumal Aiyen ([1912] M.W.N. 44), Biru Mohata v. Shyania Charan Khowas ([1895] I.L.R. 22 Cal. 483), Abdul Karim v. Islamunnissa Bibi ([1916] I.L.R. 38 All. 339) and Lakshminarayan v. Laduram ([1931] A.I.R. 1932 Bom. 96), approved. That the court, however, had the power to treat the plaint in the suit as an application under s. 47 subject to any objection as to limitation or jurisdiction. That the application was not barred under Art. 165 as it ap- plied only to applications for restoration to possession by persons other than judgment-debtors and bad no application to the present case. Vachali Bohini v. Kombi Aliassan'([1919] I.L.R. 42 Mad. 753), Batnam Aiyar v. Krishna Doss Vital Doss ([1897] I.L.R. 21 Mad. 494, Basul v. Amina ([1922] I.L.R. 46 Bom. 1031) and Bahir Das v. Girish Chandra ([1922] A.I.R. 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. 181 of the Indian Limitation Act. Seshagiri Rao v. Srinivasa Rao ([1919] I. L.R. 43 Mad. 313), Bajagopalier v. Bamanujachariar ([1923] I.L.R. 47 Mad. 288), Manmothanoth Ghose v. Lachmi Devi ([1927] I.L.R. 55 Cal. 96), Nirode Kali Boy v. Harendra Nath (I.L.R. [1938] 1 Cal. 280), and 119 940 Md We Gyan v. Maung Than Byu (A.I.R. 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.I.R. 1930 Mad. 12), approved. That the District Court of East Godavari to whose 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 execution with reference to them such action was no more than an irregular 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 Bao, (I.L.R. [1943] Mad. 804), applied. Case-law discussed. JUDGMENT:
CIVIL 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. I 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
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 material
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
942
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 I 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 I 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 re-
maining 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
expert. On 31-1-1931 the suit was decreed in terms of the
compromise as against defendants I 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
943
their being sold on the ground that the mortgage had been
discharged in 1923, and that the exparte 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
86-1/2 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 the 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 pro-
perties. 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, O.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 1946.
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
mentioned that while 81 acres 86-1/3 cents of land belonging
to Rangaraju and his sons had been sold on the 14th and 15th
April 1936, their remaining properties of the
944
extent of 54 acres 58-1/2 cents were sold after the insti-
tution 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 bad 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 District 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
945
Procedure Code. On this finding, 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 by 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 of 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 section 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 discretion 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 0. 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
946
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. sufficient to cover 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 order of the High Court calling for a
finding, counsel on both sides understood it as involving a
decision on this point as well, and the argument proceeded
on the footing that it 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 finding
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 under Exhibit A but of the properties themselves was
excessive execution against which the judgment-debtor 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 Procedure Code and not in a separate suit.
In J. Marret v. Md. K. Shirazi & Sons(1) the facts were
that an 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
(1) A.I.R. 1930 P.C. 86.
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 were 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(3) and Lakshmi-
narayan v. Laduram(4). 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 under 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 861 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
2,0.4
(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.
120
948
the file of the District Munsif’s court, Rajahmundry, which
was on 14-12-1936. Now, the point for determination is
whether the plaint 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.
Under 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. In Vachali
Rohini v. Kombi Aliassab(1), a Full Bench of the Madras High
Court has held, dissenting from the view previously ex-
pressed in Ratnam Aiyar v. Krishna Doss Vital DSS(2) and
following Abdul Karim v. Mt. Is amunnissa Bibi (3), that
this article applies only to applications for being restored
to possession 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 (4) and Bahir
Das v. Girish Chandra(1). 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
2,0.4
(1) [1919] I.L.R. 42 Mad. 753.
(2) [1897] I.L.R. 21 Mad. 494.
(3) [1916] I.L.R. 38 All. 339
(4) [1922] I.L R. 46 Bom. 1031.
(5) [1922) A.I.R. 1923 Cal. 287.
949
set aside as for example, under Order XXI, rules 8990 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 application, 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 had 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 ap-
proved by a Full Bench of the Madras High Court in
Rajagopalier v. Ramanujachariar. A similar decision was
given in, Manmothanath Ghose v. Lachmi Devi(1), wherein it
was observed by Page, J. that the sale being void need not
have been set aside at all, and the order 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(1). In holding that 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
(1) [1919] I.L.R. 48 Mad. 813.
(2) [ 1928] I.L.R. 47 Mad. 288.
(3) [1927] I.L.R. 55 Cal 96.
(4) I.L.R. [1938] 1 Cal. 280,
950
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(1) and Rajagopalier v. Ramanujachariar(2)
were again followed in Ma We Gyan v. Maung Than Byu(3),
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 581 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.
(1) [1919] I.L.R. 43 Mad. 313.
(2) (1923] I.L.R. 47 Mad. 288.
(3) A.I.R. 1937 Rang. 126.
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 Gyan 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 lie 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.
952
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 present suit was
instituted in the District Court, East Godavari, it had
jurisdiction over the properties, 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. Vide Seeni Nadan v.
Muthuswamy Pillai(1) Masrab Khan v. Debnath Mali(1) and
Jagannath v. Ichharam(3). 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 (4), Jahar v. Kamini
Devi(1) and Udit Narayan v. Mathura Prasad(6). But in
Ramier v.
2,0.3
(1) [1919] I.L.R. 42 Mad. 821. F.B.
(2) I.L.R. [1942] 1 Cal. 289.
(3) A.1 R. 1925 Bom. 414.
(4) [1880] I.L.R. 6 Cal. 513.
(5) [1900] 28 Cal, 238.
(6) [1908] I.L.R. 35 Cal. 974.
953
Muthukrishna Ayyar(1), 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 an 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(1). It is not
necessary in this case to decide which of these two views is
correct, because even assuming that the opinion expressed in
Ramier v. Muthukrishna Ayyar(1) is correct, the present case
is governed by the principle laid down in Balakrishnayya v.
Linga Rao(1). 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 appli-
cation 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 the 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(,),
and hold that the objection to the District Court enter-
taining an application to execute the decree in 0. S. No. 25
of 1927 is one that could be waived and not
(1) [1932] I.L.R. 55 Mad. 801.
(2) I.L.R. [1942] 1 Cal. 289.
(3) I.L.R. [1943] Mad. 804.
954
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 dep-
rived of all claims for mesne profits down to this date.
In the result, treating the plaint as I 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.
955