{"id":120543,"date":"1955-11-04T00:00:00","date_gmt":"1955-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/merla-ramanna-vs-nallaparaju-and-others-on-4-november-1955"},"modified":"2018-03-26T19:45:46","modified_gmt":"2018-03-26T14:15:46","slug":"merla-ramanna-vs-nallaparaju-and-others-on-4-november-1955","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/merla-ramanna-vs-nallaparaju-and-others-on-4-november-1955","title":{"rendered":"Merla Ramanna vs Nallaparaju And Others on 4 November, 1955"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Merla Ramanna vs Nallaparaju And Others on 4 November, 1955<\/div>\n
Equivalent citations: 1956 AIR 87, \t\t 1955 SCR (2) 938<\/div>\n
Author: T V Aiyyar<\/div>\n
Bench: Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nMERLA RAMANNA\n\n\tVs.\n\nRESPONDENT:\nNALLAPARAJU AND OTHERS.\n\nDATE OF JUDGMENT:\n04\/11\/1955\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBHAGWATI, NATWARLAL H.\nSINHA, BHUVNESHWAR P.\n\nCITATION:\n 1956 AIR   87\t\t  1955 SCR  (2) 938\n\n\nACT:\nCourt,\tPower  of-Suit to set aside sale held  in  excessive\nexecution  of the decree-Maintainability-Plaint, if  may  be\ntreated\t as  an\t execution   application-Limitation-Inherent\njurisdiction  of  court to whose jurisdiction  the  subject-\nmatter\tof  the\t decree\t is  transferred-Failure  to   raise\nobjection at the earliest stage-Waiver-Code of Civil  Proce-\ndure  (Act  V of 1908), s. 47-Indian Limitation Act  (IX  of\n1908), Arts. 165, 166, 181.\n\n\n\nHEADNOTE:\nThe  appellant was the assignee of a mortgage  dated  14-12-\n1911, executed by A, which comprised. lands belonging to the\nmortgagor and also a mortgage executed by the respondents in\nhis favour on 19-7-1909.  The appellant instituted a suit in\nthe  court  of the Subordinate Judge of\t Kakinada,  for\t the\nrecovery  of  the amount due on the mortgage,  dated  14-12-\n1911, and prayed for sale of the hypotheca.  The respondents\nwere  impleaded as defendants but did not appear.  The\tsuit\nwas  decreed ex parte, and in execution of the\tdecree,\t the\nproperties of the respondents, mortgaged to A on  19-7-1909,\nwere  brought to sale, and purchased by\t the  decree-holder.\nThe  respondents  then instituted the present  suit  in\t the\nDistrict Court of East Godavari which then bad\tjurisdiction\nover  the  properties in suit, for a  declaration  that\t the\ndecree\t obtained  by  the  appellant  was  fraudulent\t and\ninoperative  and could not affect their title.\t The  plaint\nwas later on amended and a prayer added that the  properties\nmight  be  partitioned and the respondents put\tin  separate\npossession  of their share.  The trial Judge  dismissed\t the\nsuit and the District Court in appeal affirmed his decision.\nBefore the High Court in second appeal it was contended\t for\nthe first time that the decree in question did not direct  a\nsale  of  the mortgaged properties but a sale of  the  mort-\ngagee's\t rights under the mortgage deed dated 19-7-1909\t and\nas such the sale of the properties was void.  The High Court\nhaving\tcalled for a finding from the District Court  as  to\nwhat was sold, it was\n939\nfound  by that Court that the decree bad really\t directed  a\nsale  of  the mortgagee's rights and not of  the  properties\nmortgaged  and that there was excessive execution.  It\twas,\nhowever,  of opinion that the point should have\t been  taken\nbefore\tthe  executing court and the suit in so\t far  as  it\nclaimed\t relief\t on  the basis of  excessive  execution\t was\nbarred under s. 47 of the Code of Civil Procedure.  The High\nCourt declined to entertain the objection that the suit\t was\nbarred\tunder s. 47 as it had not been taken in the  written\nstatement  and\twas  raised for the  first  time  in  second\nappeal, and decreed the respondent's suit.  It was contended\nfor   the  appellant  that  the\t High  Court   should\thave\nentertained  the  objection and held that the  suit  was  so\nbarred.\nHeld,  that the appellant should be permitted to  raise\t the\ncontention.   The point relating to excessive execution\t had\nnever been specifically raised except before the High  Court\nand  the allegations in the plaint were vague  and  obscure.\nIt  is\ta  pure question of law which  requires\t no  further\ninvestigation  of  facts and was understood and\t debated  as\nsuch by the parties before the District Court.\nThat  it  was  well settled that  the  question\t whether  an\nexecution  sale was in excess of the decree and,  therefore,\nnot  warranted by it could be raised as between the  parties\nonly  by an application under s. 47 of the Code\t before\t the\nexecuting court and not by a separate suit.\nJ.   Marret  v.\t Md.  K. Shirazi & Sons (A.I.R. 1930  P.  C.\n86), Venkatachalapathy Aiyen v. Perumal Aiyen ([1912] M.W.N.\n44), Biru Mohata v. Shyania Charan Khowas ([1895] I.L.R.  22\nCal.  483), Abdul Karim v. Islamunnissa Bibi ([1916]  I.L.R.\n38  All. 339) and Lakshminarayan v. Laduram  ([1931]  A.I.R.\n1932 Bom. 96), approved.\nThat  the court, however, had the power to treat the  plaint\nin  the\t suit as an application under s. 47 subject  to\t any\nobjection as to limitation or jurisdiction.\nThat the application was not barred under Art. 165 as it ap-\nplied only to applications for restoration to possession  by\npersons\t other than judgment-debtors and bad no\t application\nto the present case.\nVachali\t Bohini\t v. Kombi Aliassan'([1919]  I.L.R.  42\tMad.\n753), Batnam Aiyar v. Krishna Doss Vital Doss ([1897] I.L.R.\n21 Mad. 494, Basul v. Amina ([1922] I.L.R. 46 Bom. 1031) and\nBahir Das v.   Girish Chandra ([1922] A.I.R. 1923 Cal. 287),\napproved.\nNor could Art. 166 apply since it had application only where\nthe sale was voidable and not void and had to be set  aside.\nThat the article applicable to a case of a void sale such as\nthe present was Art. 181 of the Indian Limitation Act.\nSeshagiri Rao v. Srinivasa Rao ([1919] I. L.R. 43 Mad. 313),\nBajagopalier v. Bamanujachariar ([1923] I.L.R. 47 Mad. 288),\nManmothanoth  Ghose  v. Lachmi Devi ([1927] I.L.R.  55\tCal.\n96), Nirode Kali Boy v. Harendra Nath (I.L.R. [1938] 1\tCal.\n280), and\n119\n940\nMd  We Gyan v. Maung Than Byu (A.I.R. 1937 Rang.  126),\t ap-\nproved.\nThat  the  starting point of limitation for  an\t application\nunder  Art.  181 would be the date of dispossession  by\t the\npurchaser  and\tnot the date of the void sale which  had  no\nexistence in law and the plaint in the present suit, treated\nas an application, having been filed ,within 3 years of such\ndispossession was in time.\nChengalraya v. Kollapuri (A.I.R. 1930 Mad. 12), approved.\nThat   the  District  Court  of\t East  Godavari\t  to   whose\njurisdiction the properties had been transferred before\t the\npresent\t suit was instituted had by reason of such  transfer\nacquired  an  inherent\tjurisdiction over  them\t and  if  it\nentertained  an application for execution with reference  to\nthem such action was no more than an irregular assumption of\njurisdiction  and no objection to jurisdiction\thaving\tbeen\ntaken  by the appellant at the earliest opportunity he\tmust\nbe deemed to have waived it and, consequently, there was  no\nlegal bar to treating the plaint as an execution application\nunder s. 47 of the Code.\nBalakrishnayya\tv.  Linga  Bao, (I.L.R.\t [1943]\t Mad.  804),\napplied. Case-law discussed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 183 of 1952.
\nAppeal\tby special leave from the Judgment and Decree  dated
\nthe  16th day of February 1950 of the Madras High  Court  in
\nSecond\tAppeal No. 1826 of 1945 from Original  Decree  dated
\nthe  16th March, 1945, of the Court of District Judge,\tEast
\nGodavari  at Rajahmundry in A.S. No. 32 of 1943 arising\t out
\nof the Decree dated the 31st October, 1942, of the Court  of
\nSub-Judge,  Rajahmundry in Suit No. 17 of 1940 and O.S.\t No.
\n39 of 1939.\n<\/p>\n
B.   Somayya (K.  R. Chaudhury and Naunit Lal, with him) for
\nthe appellant.\n<\/p>\n
K.   S.\t Krishnaswamy Aiyangar, (K.  R.\t Krishnaswamy,\twith
\nhim) for respondents Nos.  I to 4.\n<\/p>\n
1955.\tNovember 4. The Judgment of the Court was  delivered
\nby
\nVENKATARAMA  AYYAR  J.-This is an appeal  by  special  leave
\nagainst\t the judgment of the Madras High Court in  a  second
\nappeal which reversed the concurrent judgments of the courts
\nbelow, and granted a decree
\n941<\/span>
\nin favour of the respondents for partition and possession of
\n126 acres 33 cents out of a parcel of land of the extent  of
\n503 acres 18 cents in the village of Kalavacherla and of  10
\nacres  12 cents out of a parcel of land of the extent of  40
\nacres  47  cents  in the village of  Nandarada,\t with  mesne
\nprofits,  past\tand future.  All these lands  measuring\t 543
\nacres 65 cents were purchased by five co-sharers on 5-6-1888
\nunder  two  sale deeds, Exhibits P and P-1.   One  of  these
\nshares of the extent of about 218 acres was, at the material
\ndates, held in common by two brothers, Rangaraju and Kumara,
\nthe former owning 136 acres 45 cents and the latter 81 acres
\n45  cents.  On 19-8-1908 Kumara executed a simple  mortgage,
\nExhibit\t Q, over 81 acres 45 cents belonging to him for\t Rs.
\n1,000  in  favour of Nallapparaju, who\twith  his  undivided
\nbrother, Achutaramaraju, held a share in the two parcels  of
\nland aforesaid in Kalavacherla and Nandarada.  On  19-7-1909
\nboth  Rangaraju and Kumara executed a mortgage,\t Exhibit  A,
\nfor  Rs. 2,000 over all the 218 acres belonging to  them  in
\nfavour of Achutaramaraju.  On 4-6-1910 Kumara again  created
\na mortgage over 81 acres 45 cents belonging to him,  Exhibit
\nQ-1  for Rs. 2,500 in favour of Achutaramaraju.\t  On  14-12-
\n1911  Achutaramaraju executed a mortgage for Rs.  14,000  in
\nfavour\t of  one  Merla\t Agastayya,  Exhibit  C,  over\t the
\nproperties which he held in full ownership as co-sharer, and
\nalso  the mortgage right which he held over  the  properties
\nbelonging  to Rangaraju and Kumara under the three  mortgage
\ndeeds, Exhibits Q, A and Q-1.  On 29-8-1920 Kumara sold\t the
\n81  acres  45 cents belonging to him and  comprised  in\t the
\nmortgages aforesaid to Achutaramaraju for Rs. 11,000 as\t per
\nExhibit\t G,  and thereby the two deeds, Exhibits Q  and\t Q-1
\nbecame completely discharged and Exhibit A to the extent  of
\nthe  half  share  of Kumara.  The  position  then  was\tthat
\nAchutaramaraju became the owner of 81 acres 45 cents out  of
\nthe  properties mortgaged under Exhibit A, and continued  to
\nbe  a  simple mortgagee as regards the rest of them  to\t the
\nextent of half the amount due therein.\tBy virtue of section
\n70 of the Transfer of
\n942<\/span>
\nProperty  Act, the sale under Exhibit G would enure for\t the
\nbenefit\t  of  the  mortgagee,  Merla  Agastayya,  being\t  an
\naccession to the interest of his mortgagor.
\nOn 20-1-1924 the representatives of Merla Agastayya assigned
\ntheir  interests in the mortgage, Exhibit C, to the  present
\nappellant, who instituted O.S. No. 25 of 1927 on the file of
\nthe  court of the Subordinate Judge of Kakinada\t to  recover
\nthe   amount   due  thereon  by\t sale  of   the\t  hypotheca.
\nAchutaramaraju, the mortgagor, and the members of his family
\nwere  defendants I to 4 in that suit.  Kumara was  impleaded
\nas  the\t 14th  defendant  and  Rangaraju  and  his  son\t  as
\ndefendants  15 and 16.\tIn the plaint, it was  alleged\tthat
\nthe  properties comprised in the mortgage deed,\t Exhibit  C,
\nconsisted  of the properties belonging to the mortgagors  in
\nfull ownership as co-sharers and also of the mortgage  right
\nunder  Exhibits Q, A and Q-1.  Then there was an  allegation
\nthat  defendants  I  to\t 4  had\t themselves  purchased\t the
\nmortgaged   properties\t“towards  discharge  of\t the   first
\ndefendant’s  mortgage debts”.  As a statement of fact,\tthis
\nwas not accurate, because the purchase by Achutaramaraju was
\nonly  of 81 acres 45 cents belonging to Kumara and  the\t re-
\nmaining\t properties continued to be held by  Rangaraju,\t and
\nAchutaramaraju was only a mortgagee thereof under Exhibit A.
\nThere were the further allegations that defendants 14 to  16
\nwere impleaded as parties because they were in possession of
\nthe properties, and that they were the predecessors-in-title
\nin  respect  of the properties which  were  mortgaged  under
\nExhibits  Q, A and Q-1.\t Then there was the  general  prayer
\nfor the sale of the properties.\n<\/p>\n
The mortgagors, defendants 1 to 4, entered into a compromise
\nwith  the  plaintiff,  while defendants 14  to\t16  remained
\nexpert.\t  On 31-1-1931 the suit was decreed in terms of\t the
\ncompromise  as\tagainst defendants I to 4 and  ex  parte  as
\nagainst\t defendants 14 to 16, and a final decree was  passed
\non 6-11-1932.  On 23-8-1934 the decree-holder filed E.P. No.
\n99  of 1934 praying for the sale of the hypotheca  including
\nthe properties mentioned in Exhibit A. Defendants 15 and  16
\nthen intervened, and filed an objection to
\n943<\/span>
\ntheir  being sold on the ground that the mortgage  had\tbeen
\ndischarged in 1923, and that the exparte decree against them
\nhad  been  obtained  fraudulently.   This  application\t was
\nrejected  by  the  Subordinate Judge on\t 26-8-1935,  and  an
\nappeal against this order to the High Court, Madras was also
\ndismissed on 1-9-1938.\tMeanwhile, 163 acres 18 cents out of
\nthe properties mortgaged under Exhibit A, of which 81  acres
\n86-1\/2 cents belonged to Rangaraju, were brought to sale  on
\nthe  14th and 15th April 1936, and purchased by the  decree-
\nholder\thimself.  The sale was confirmed on  26-6-1936,\t and
\npossession  taken on 15-12-1936.  But before possession\t was
\ntaken, on 14-12-1936 Rangaraju and his sons instituted\tO.S.
\nNo. 268 of 1936 in the District Munsif’s court,\t Rajahmundry
\nfor a declaration that the decree in O.S. No. 25 of 1927 had
\nbeen  obtained fraudulently, and that the decree-holder\t was
\nnot  entitled  to execute the decree as against\t their\tpro-
\nperties.  An objection was taken to the jurisdiction of\t the
\ncourt  of  the\tDistrict  Munsif  to  try  this\t suit,\t and
\neventually,  the plaint was returned to be presented to\t the
\nproper\tcourt.\tThereupon, they instituted on  7-8-1939\t the
\npresent\t suit,\tO.S.  No.  39 of 1939 on  the  file  of\t the
\nDistrict  Court,  East Godavari for a declaration  that\t the
\ndecree\tin 0. S. No. 25 of 1927 was obtained by\t suppressing
\nservice\t of  summons, and was therefore void and  could\t not
\naffect\ttheir  title  to  136  acres  45  cents\t which\twere
\nmortgaged  under Exhibit A. The suit was transferred to\t the
\ncourt  of  the\tSubordinate Judge of  Rajahmundry,  and\t was
\nnumbered as O.S. No. 79 of 1946.\n<\/p>\n
In  his\t written statement, the appellant  denied  that\t the
\ndecree in O.S. No. 25 of 1927 was obtained fraudulently, and
\ncontended  that the present suit was barred  by\t limitation.
\nHe  also pleaded that as he had purchased the properties  in
\nexecution of the decree and obtained possession thereof, the
\nsuit  which was one for a bare declaration that\t the  decree
\nwas void and inexecutable was not maintainable.\t It must  be
\nmentioned that while 81 acres 86-1\/3 cents of land belonging
\nto Rangaraju and his sons had been sold on the 14th and 15th
\nApril 1936, their remaining properties of the
\n944<\/span>
\nextent\tof 54 acres 58-1\/2 cents were sold after the  insti-
\ntution of O.S. No. 268 of 1936 in the court of the  District
\nMunsif,\t Rajahmundry.  In view of the objections  aforesaid,
\nthe  plaintiffs amended the plaint by adding a\tprayer\tthat
\n136 acres 45 cents out of the total of 543 acres 65 cents in
\nschedule  A and belonging to them might be  partitioned\t and
\nput in their separate possession.\n<\/p>\n
The  Subordinate Judge of Rajahmundry dismissed the suit  on
\nthe ground that no fraud had been established, and that\t the
\nsuit was barred by limitation in so far as it sought to\t set
\naside  the  decree on the ground of fraud.   The  plaintiffs
\nappealed against this judgment to the District Court of East
\nGodavari,  which  by  its judgment  dated  16th\t March\t1945
\naffirmed   the\tdecree\tof  the\t Subordinate   Judge.\t The
\nplaintiffs then preferred Second Appeal No. 1826 in the High
\nCourt, Madras.\tThere, for the first time the contention was
\npressed\t that the decree in O.S. No. 25 of 1927 on its\ttrue
\nconstruction  directed\ta sale only of the  mortgage  rights
\nwhich Achutaramaraju had over the A schedule properties, and
\nthat  the sale of the properties themselves in execution  of
\nthat decree was in excess of what the decree bad  directed.,
\nand  was  therefore  void,  and\t that  the  plaintiffs\twere
\naccordingly   entitled\tto  recover  possession\t  of   those
\nproperties  ignoring  the sale.\t Satyanarayana Rao,  J.\t who
\nheard  the  appeal,  construed the  plaint  as\tsufficiently
\nraising\t this  question and issue (2) (b) as  covering\tthis
\ncontention,  and accordingly directed the District Judge  to
\nreturn\ta finding on the question as to whether the sale  of
\nthe  properties\t was warranted by the terms of\tthe  decree.
\nThe  District Judge of East Godavari to whom this issue\t was
\nreferred, held that the decree directed the sale of only the
\nmortgage rights of Achutaramaraju under Exhibit A. and\tthat
\nthe sale of the properties themselves was not in  accordance
\nwith  the  decree.   But he further held that  this  was  an
\nobjection  relating  to the execution of  the  decree  which
\ncould be agitated only before the executing court, and\tthat
\na  separate  suit with reference to that matter\t was  barred
\nunder section 47, Civil
\n945<\/span>
\nProcedure Code.\t On this finding, the second appeal came  up
\nfor  final disposal before Satyanarayana Rao, J. who  agreed
\nwith the District Judge that the sale of the properties\t was
\nnot  authorised by the decree, and was therefore void.\t But
\nhe  declined  to entertain the objection that the  suit\t was
\nbarred\tby section 47, Civil Procedure Code, on\t the  ground
\nthat it had not been taken in the written statement, and was
\na  new contention preferred for the first time at the  stage
\nof  second appeal.  In the result,, he granted a decree\t for
\npartition  and\tdelivery of 136 acres 45 cents\tout  of\t the
\nproperties  mentioned in schedule A to the  plaintiffs,\t and
\nmesne profits, past and future.\t Against this judgment,\t the
\ndefendant  prefers the present appeal, and insists that\t the
\nsuit  is  liable to be dismissed as barred  by\tsection\t 47,
\nCivil Procedure Code.\n<\/p>\n
On behalf of the appellant, it was contended by Mr.  Somayya
\nthat  the question whether having regard to section  47\t the
\nsuit  was maintainable was argued before the  learned  Judge
\nbefore\the called for a finding, and that it ought  to\thave
\nbeen  therefore considered on the merits, and that,  in\t any
\nevent, as it was a pure question of law and went to the root
\nof the matter, it ought to have been entertained.  On behalf
\nof  the\t respondents, Mr.  Krishnaswami\t Iyengar  vehemently
\ncontends that as the objection to the maintainability of the
\nsuit  based  on\t section 47 was not  taken  in\tthe  written
\nstatement,  the\t learned Judge had a discretion\t whether  he
\nshould\tpermit the point to be raised for the first time  in
\nsecond appeal or not, and that we should not interfere\twith
\nthe  exercise  of that discretion in  special  appeal.\t The
\nbasis  on  which the suit has now been decreed is  that\t the
\ndecree\tin 0. S. No. 25 of 1927 properly construed  directed
\nonly  a sale of mortgage rights under Exhibit A and  not  of
\nthe properties, but it must be conceded that this point does
\nnot distinctly emerge on the face of the plaint.  It is true
\nthat  there are allegations therein which might be  read  as
\ncomprehending that question, but they are vague and elusive,
\nand  what is more, this contention was not argued either  in
\nthe court of the
\n946<\/span>
\nSubordinate Judge of Rajahmundry or in the District Court of
\nEast  Godavari,\t and it is only in second  appeal  that\t the
\nquestion appears to have been first thought of in this form.
\nThough\twe are not prepared to say that the  allegations  in
\nthe  plaint are not. sufficient to cover this point, we\t are
\nof the opinion that they are so obscure that it is  possible
\nthat the appellant might have missed their true import,\t and
\nomitted to plead in answer thereto that the suit was  barred
\nby section 47.\tApart from this, it is to be noted that this
\npoint  does  not involve any fresh investigation  of  facts.
\nIndeed,\t when  the matter was before the District  Judge  in
\npursuance  of  the  order of the High Court  calling  for  a
\nfinding, counsel on both sides understood it as involving  a
\ndecision  on this point as well, and the argument  proceeded
\non the footing that it was a pure question of law  involving
\nno  further enquiry on facts.  We have\ttherefore  permitted
\nthe appellant to raise this contention.\n<\/p>\n
Mr. Somayya for the appellant does not challenge the finding
\nof  the District Court confirmed by the High Court that\t the
\ndecree\tdirected  only the sale of the\tmortgage  rights  of
\nAchutaramaraju\tunder  Exhibit A, but he contends  that\t the
\nsale in execution of that decree of not merely the  mortgage
\nrights under Exhibit A but of the properties themselves\t was
\nexcessive  execution against which the\tjudgment-debtor\t was
\nentitled  to obtain relief by application to  the  execution
\ncourt, and that a separate suit with reference thereto would
\nbe  barred  under section 47, Civil Procedure Code.   It  is
\nwell  settled that when a sale in execution of a  decree  is
\nimpugned on the ground that it is not warranted by the terms
\nthereof,  that\tquestion could be agitated, when  it  arises
\nbetween parties to the decree, only by an application  under
\nsection 47, Civil Procedure Code and not in a separate suit.
\nIn  J.\tMarret v. Md.  K. Shirazi & Sons(1) the\t facts\twere
\nthat  an  order was made by the execution  court  directing,
\ncontrary  to the terms of the decree, payment of  a  certain
\nfund to the decree-holder.  A separate suit
\n(1)  A.I.R. 1930 P.C. 86.\n<\/p>\n
947<\/span><\/p>\n
having\tbeen instituted by the judgment-debtor for  recovery
\nof  the\t amount on the ground that the payment\twas  not  in
\naccordance with the decree, it was held by the Privy Council
\nthat  the  action  was\tbarred under  section  47.   A\tcase
\ndirectly  in  point is Venkatachalapathy  Aiyen\t v.  Perumal
\nAiyen(1).   There, the suit was to enforce a mortgage  which
\nrelated\t both  to  properties  held  in\t ownership  by\t the
\nmortgagor and mortgage rights held by him.  In execution  of
\nthe decree passed therein, the properties themselves and not
\nmerely\tthe mortgage rights were sold.\tThe  judgment-debtor
\nthen sued for a declaration that what was sold was only\t the
\nmortgage right and to recover possession of the\t properties.
\nIt  was held that such a suit was barred under\tsection\t 47.
\nVide  also  the decisions in Biru Mahata  v.  Shyama  Charan
\nKhawas(2), Abdul Karim v. Islamunnissa Bibi(3) and  Lakshmi-
\nnarayan v. Laduram(4).\tThe position is, in our opinion, too
\nwell settled to be open to argument, and it must accordingly
\nbe  held that the present suit is barred under\tsection\t 47,
\nCivil Procedure Code.\n<\/p>\n
That,  however, does not conclude the matter.\tSection\t 47,
\nclause\t(2)  enacts  that “the Court  may,  subject  to\t any
\nobjection   as\tto  limitation\tor  jurisdiction,  treat   a
\nproceeding  under  this\t section as a suit or a\t suit  as  a
\nproceeding………..  Under this provision, this Court\t has
\nthe  power to treat the plaint presented on 7-8-1939  as  an
\napplication  under section 47 provided that on that date  an
\napplication  for  the  relief  claimed\twas  not  barred  by
\nlimitation, and provided further that the court in which  it
\nwas  filed  was\t competent to execute the  decree.   On\t the
\nquestion of limitation, the relevant dates are the 14th\t and
\n15th,  April 1936, when 81 acres 861 cents belonging to\t the
\nplaintiffs were sold, and 15th December 1936 when possession
\nwas  taken thereof through court.  As regards the  remaining
\nproperties, the exact date on which they were, sold does not
\nappear\ton the record, but it is sufficient for the  present
\npurpose\t that it was subsequent to the institution  of\tO.S.
\nNo. 268 of 1936 on
\n  2,0.4
\n(1)  [1912] M.W.N. 44.\n<\/p>\n
(2)  [1895] I.L.R. 22 Cal. 483.\n<\/p>\n
(3)  [1916] I.L.R. 38 All. 339.\n<\/p>\n
(4)  [1931] A.I.R. 1932 Bom. 96.\n<\/p>\n
 120<\/span>
\n948<\/span><\/p>\n
the file of the District Munsif’s court, Rajahmundry,  which
\nwas  on\t 14-12-1936.  Now, the point  for  determination  is
\nwhether\t the  plaint was barred by limitation  either  under
\narticle 165 or article 166 of the Indian Limitation Act,  if
\nit is treated as an execution application presented. on 7-8-
\n1939, or whether it was in time under article 181.
\nUnder  article 165, an application by a person\tdispossessed
\nof  immovable  properties  and disputing the  right  of\t the
\ndecree-holder or purchaser at an execution,sale to be put in
\npossession  must be filed within 30 days  of  dispossession.
\nIf   this   is\tthe  article  applicable  to   the   present
\nproceedings, then it must be held that the plaint treated as
\nan execution application was filed out of time.\t In  Vachali
\nRohini v. Kombi Aliassab(1), a Full Bench of the Madras High
\nCourt  has  held, dissenting from the  view  previously\t ex-
\npressed\t in  Ratnam Aiyar v. Krishna Doss Vital\t DSS(2)\t and
\nfollowing  Abdul Karim v. Mt.  Is amunnissa Bibi  (3),\tthat
\nthis article applies only to applications for being restored
\nto  possession\tby persons other than  judgment-debtors,  as
\nunder  Order  XXI, rule 100, Civil Procedure Code  and\tthat
\napplications  by  judgmentdebtors  claiming  relief  on\t the
\nground\tthat their properties had been erroneously taken  in
\nexecution  of the decree are not governed by it.  This\tview
\nwas  approved and followed in Rasul v. Amina (4)  and  Bahir
\nDas  v. Girish Chandra(1).  We are of the opinion  that\t the
\nlaw has been correctly laid down in the above decisions, and
\nthat  in accordance therewith, the present  proceedings\t are
\nnot barred by article 165.\n<\/p>\n
Coming\tnext to article 166, an application by\ta  judgment-
\ndebtor\tto  set aside a sale in execution of a\tdecree\thas,
\nunder that article, to be filed within 30 days of the  sale.
\nIf  the\t present proceedings are governed by  this  article,
\nthere can be no question that they are barred by limitation.
\nBut  then,  there  is abundant authority  that\tarticle\t 166
\napplies only when the sale is one which has under the law to
\nbe
\n  2,0.4
\n(1)  [1919] I.L.R. 42 Mad. 753.\n<\/p>\n
(2)  [1897] I.L.R. 21 Mad. 494.\n<\/p>\n
(3)  [1916] I.L.R. 38 All. 339
\n(4)  [1922] I.L R. 46 Bom. 1031.\n<\/p>\n
(5)   [1922) A.I.R. 1923 Cal. 287.\n<\/p>\n
949<\/span><\/p>\n
set  aside as for example, under Order XXI, rules  8990\t and
\n91,  but  that\tit  has no  application\t when  the  sale  is
\ninoperative and void.  In Seshagiri Rao v. Srinivasa Rao(1),
\nthe  appellant was a party to the -suit, but the decree\t had
\nexonerated him from liability.\tIn execution of the  decree,
\nhis three-fourths’ share in the properties was sold on 26-1-
\n1910  and  purchased  by the  decree-holder  and  possession
\ndelivered to him on 16-12-1910.\t The appellant then filed  a
\nsuit  on 25-7-1911 to set aside the sale on the ground\tthat
\nit  was in contravention of the decree and  therefore  void.
\nAn  objection  having been taken by the defendant  that\t the
\nsuit was barred under section 47, the court, while upholding
\nthe  same,  held  that the plaint could\t be  treated  as  an
\napplication  under  that  section if it was in\ttime  as  an
\nexecution  application, and the question arose for  decision
\nwhether\t the  application  was governed by  article  166  or
\narticle 181 of the Indian Limitation Act.  It was held that-
\nas the sale was a nullity, it had not to be set aside  under
\nthe  law, and therefore the article applicable\twas  article
\n181 and not article 166.  This statement of the law was\t ap-
\nproved\tby  a  Full  Bench  of\tthe  Madras  High  Court  in
\nRajagopalier  v.  Ramanujachariar.  A similar  decision\t was
\ngiven  in, Manmothanath Ghose v. Lachmi Devi(1), wherein  it
\nwas  observed by Page, J. that the sale being void need\t not
\nhave  been set aside at all, and the order to be passed\t was
\n“in  substance merely a declaration that the sale  was\tnull
\nand of no effect”.  The question whether an application by a
\njudgmentdebtor\tfor setting aside a sale on the ground\tthat
\nthere  was  excessive  execution and that the  sale  of\t his
\nproperties  was in consequence void was governed by  article
\n166  or\t article 181 came up directly for  consideration  in
\nNirode\tKali Roy v. Harendra Nath(1).  In holding  that\t the
\napplication  was governed by article 181, B.  K.  Mukherjea,
\nJ.,  (as  he then was) observed that “article  166  must  be
\nconfined  to cases where the sale is voidable only  and\t not
\nvoid when the execution sale is a nullity, if a party  files
\nan application under
\n(1)  [1919] I.L.R. 48 Mad. 813.\n<\/p>\n
(2)  [ 1928] I.L.R. 47 Mad. 288.\n<\/p>\n
(3)  [1927] I.L.R. 55 Cal 96.\n<\/p>\n
(4)  I.L.R. [1938] 1 Cal. 280,
\n950<\/span>
\nsection 47 to have it pronounced a nullity or for setting it
\naside  for safety’s sake to avoid future  difficulties,\t the
\nproper\tarticle would be article 181 and not article 166  of
\nthe Indian Limitation Act”.  The decisions in Seshagiri\t Rao
\nv.  Srinivasa Rao(1) and Rajagopalier v.  Ramanujachariar(2)
\nwere  again  followed in Ma We Gyan v.\tMaung  Than  Byu(3),
\nwherein it was held that if the execution sale was void,  it
\nwas  not necessary for the applicant to have it\t set  aside,
\nand  that  even if there was such a prayer, that  would\t not
\naffect\tthe real nature of the application which was  really
\n“for  an order directing the respondent to deliver  property
\non  the\t ground that there was no valid sale”.\t We  are  in
\nagreement with these decisions, and hold that when a sale in
\nexecution  is  inoperative  and void, an  application  by  a
\njudgment-debtor to have it declared void and for appropriate
\nreliefs is governed by article 181 and not article 166.\t  On
\nthe findings of the courts below that the decree in O.S. No.
\n25  of 1927 properly construed authorised only the  sale  of
\nthe  mortgage rights of Achutaramaraju under Exhibit  A\t and
\nnot  the  lands\t which\twere  the  subject-matter  of\tthat
\nmortgage,  the\trespondents were entitled to  apply  to\t the
\ncourt  for delivery of possession of the properties  wrongly
\nsold   through\tprocess\t of  court  and\t delivered  to\t the
\nappellant,  and\t such an application would  be\tgoverned  by
\narticle 181.\n<\/p>\n
Then, there is the further question whether applying article
\n181, the plaint presented on 7-8-1939 was within time  under
\nthat  article.\tAs already stated, 81 acres 581\t cents\twere
\nsold on the 14th and 15th April 1936.  If the starting point
\nof  limitation\tis the date of -sale, then  the\t application
\nmust  be held to be barred, -unless the period during  which
\nthe  suit was pending in the court of the  District  Munsif,
\nRajahmundry,  is  deducted under section 14  of\t the  Indian
\nLimitation  Act.  But if limitation is to be  reckoned\tfrom
\nthe  date  of  dispossession,  then  the  application  would
\nclearly\t be in time.  Under article 166, an  application  to
\nset aside a sale must be presented within 30 days thereof.
\n(1) [1919] I.L.R. 43 Mad. 313.\n<\/p>\n
(2) (1923] I.L.R. 47 Mad. 288.\n<\/p>\n
(3) A.I.R. 1937 Rang. 126.\n<\/p>\n
951<\/span><\/p>\n
But  if the sale in question was void, and for\tthat  reason
\narticle 166 becomes inapplicable, then the date of the\tsale
\nmust  vanish as the starting point of limitation, as it\t has
\nno  existence in law.  It is not until the purchaser  acting
\nunder colour of sale interferes with his possession that the
\nperson whose properties have been sold is really  aggrieved,
\nand what gives him right to apply under article 181 is\tsuch
\ninterference or dispossession and not the sale.\t As observed
\nin  Ma We Gyan v. Maung Than Byu(1), such an application  is
\nreally\tone  for an order for redelivery of  the  properties
\nwrongly\t taken -possession of by the purchaser.\t If that  is
\nthe correct position, the right to apply arises by reason of
\ndispossession  and not of sale, and the starting  point\t for
\nlimitation  would be the date of dispossession.\t It  was  so
\nheld in Chengalraya v. Kollapuri(2).  There, the  properties
\nof a party to the suit who had been exonerated by the decree
\nwere  sold  in\texecution of that  decree  on  8-1-1918\t and
\npurchased by the decree-holder.\t It was found that lie\ttook
\nactual possession of the properties in 1919.  On  23-11-1921
\nthe representatives in interest of the exonerated  defendant
\ncommenced   proceedings\t to  recover  possession   ,of\t the
\nproperties  from the decree-holder purchaser on\t the  ground
\nthat the sale under which he claimed was void.\tIt was\theld
\nthat the proper article of limitation applicable was article
\n181, and that time commenced to run under that article\tfrom
\nthe  date not of sale but of actual dispossession, and\tthat
\nthe  proceedings  were accordingly in time.  We\t agree\twith
\nthis  decision, and hold that an application by a  party  to
\nthe suit to recover possession of properties which had\tbeen
\ntaken  delivery of under a void execution sale would  be  in
\ntime  under article 181, if it was filed within three  years
\nof   his  dispossession.   Therefore,  there  is  no   legal
\nimpediment to the plaint filed on 7-8-1939 being treated  as
\nan  application under section 47, on the ground that  it  is
\nbarred by limitation.\n<\/p>\n
The  next question for consideration is whether the  present
\nsuit was filed in a court which had jurisdiction to  execute
\nthe decree in O. S. No. 25 of 1927.\n<\/p>\n
(1) A.I.R. 1937 Rang. 126.\n<\/p>\n
(2) A.I.R. 1930 mad. 12.\n<\/p>\n
952<\/span><\/p>\n
That  was  a  decree  passed by\t the  Subordinate  Judge  of
\nKakinada, whereas the present suit was filed in the District
\nCourt,\tEast Godavari to which the court of the\t Subordinate
\nJudge  of  Kakinada  is\t subordinate.\tSection\t 38,   Civil
\nProcedure Code provides that a decree may be executed either
\nby the court which passed it or by the court to which it  is
\nsent for execution.  The District Court of East Godavari  is
\nneither the court which passed the decree in O.S. No. 25  of
\n1927 nor the court to which it had been sent for  execution.
\nBut  it\t is  common ground that when the  present  suit\t was
\ninstituted  in\tthe District Court, East  Godavari,  it\t had
\njurisdiction  over  the properties, which are  the  subject-
\nmatter of this suit.  It is true that by itself this is\t not
\nsufficient  to make the District Court of East Godavari\t the
\ncourt  which  passed the decree for purpose of\tsection\t 38,
\nbecause\t under section 37, it is only when the\tcourt  which
\npassed the decree has ceased to have jurisdiction to execute
\nit  that the court which has jurisdiction over the  subject-
\nmatter\twhen the execution application is presented  can  be
\nconsidered as the court which passed the decree.  And it  is
\nsettled law that the court which actually passed the  decree
\ndoes  not lose its jurisdiction to execute it, by reason  of
\nthe subject-matter thereof being transferred subsequently to
\nthe  jurisdiction  of another court.  Vide  Seeni  Nadan  v.
\nMuthuswamy  Pillai(1)  Masrab Khan v.  Debnath\tMali(1)\t and
\nJagannath v. Ichharam(3).  But does it follow from this that
\nthe  District  Court, East Godavari has no  jurisdiction  to
\nentertain the execution application in respect of the decree
\nin  O.S.  No.  25  of  1927  passed  by\t the  court  of\t the
\nSubordinate Judge, Kakinada?\n<\/p>\n
There  is  a long course of decisions in the High  Court  of
\nCalcutta that when jurisdiction over the subjectmatter of  a
\ndecree\tis transferred to another court, that court is\talso
\ncompetent  to entertain an application for execution of\t the
\ndecree.\t  Vide Latchman v. Madan Mohun (4), Jahar v.  Kamini
\nDevi(1)\t and  Udit  Narayan v. Mathura\tPrasad(6).   But  in
\nRamier v.\n<\/p>\n
  2,0.3
\n(1)  [1919] I.L.R. 42 Mad. 821.\t F.B.\n<\/p>\n
(2)  I.L.R. [1942] 1 Cal. 289.\n<\/p>\n
(3)  A.1 R. 1925 Bom. 414.\n<\/p>\n
(4)  [1880] I.L.R. 6 Cal. 513.\n<\/p>\n
(5) [1900]   28 Cal, 238.\n<\/p>\n
(6)  [1908] I.L.R. 35 Cal. 974.\n<\/p>\n
953<\/span><\/p>\n
Muthukrishna Ayyar(1), a Full Bench of the Madras High Court
\nhas taken a different view, and held that in the absence  of
\nan  order of transfer by the court which passed the  decree,
\nthat court alone can entertain an application for  execution
\nand  not the court to whose jurisdiction the  subject-matter
\nhas  been  transferred.\t  This\tview  is  supported  by\t the
\ndecision  in  Masrab  Khan v. Debnath Mali(1).\t It  is\t not
\nnecessary in this case to decide which of these two views is
\ncorrect, because even assuming that the opinion expressed in
\nRamier v. Muthukrishna Ayyar(1) is correct, the present case
\nis governed by the principle laid down in Balakrishnayya  v.
\nLinga  Rao(1).\tIt was held therein that the court to  whose
\njurisdiction the subject-matter of the decree is transferred
\nacquires  inherent jurisdiction over the same by  reason  of
\nsuch transfer, and that if it entertains an execution appli-
\ncation\twith reference thereto, it would at the worst be  an
\nirregular assumption of jurisdiction and not a total absence
\nof  it, and if objection to it is not taken at the  earliest
\nopportunity,  it  must be deemed to have  been\twaived,\t and
\ncannot\tbe  raised at any later stage  of  the\tproceedings.
\nThat precisely is the position here.  We have held that\t the
\nallegations in the plaint do raise the question of excessive
\nexecution,  and\t it was therefore open to the  appellant  to
\nhave raised the plea that the suit was barred by section 47,
\nand  then, there could have been no question of waiver.\t  We
\nhave,  it  is  true, permitted the appellant  to  raise\t the
\ncontention  that the present suit is barred by\tsection\t 47,
\nand  one of the reasons therefor is that the allegations  in
\nthe plaint are so vague that the appellant might have missed
\ntheir true import.  But that is not a sufficient ground\t for
\nrelieving him from the consequence which must follow on\t his
\nfailure to raise the objection in his written statement.  We
\nagree  with the decision in Balakrishnayya v. Linga  Rao(,),
\nand  hold  that the objection to the District  Court  enter-
\ntaining an application to execute the decree in 0. S. No. 25
\nof 1927 is one that could be waived and not
\n(1)  [1932]  I.L.R. 55 Mad. 801.\n<\/p>\n
(2) I.L.R. [1942] 1 Cal. 289.\n<\/p>\n
(3) I.L.R. [1943] Mad. 804.\n<\/p>\n
954<\/span><\/p>\n
having\tbeen  taken  in the written  statement\tis  not\t now
\navailable  to the appellant.  There is thus no legal bar  to
\nour treating the plaint presented by the respondents on 7-8-
\n1939  as an execution application under section 47,  and  in
\nthe  interests\tof justice, we direct it to be\tso  treated.
\nBut this should be on terms.  We cannot ignore the fact that
\nit is the gross negligence of the respondents at all  stages
\nthat  has been responsible for all the troubles.   They\t did
\nnot  appear in the suit, and put forward their rights  under
\nExhibit\t A. They intervened at the stage of  execution,\t but
\ntheir complaint was mainly that the ex parte decree had been
\nobtained  by  fraud, a plea which has  now  been  negatived.
\nEven in this suit. they did not press the plea on which they
\nhave succeeded until they came to the High Court.  Under the
\ncircumstances,\twe think it -just that they should  be\tdep-
\nrived of all claims for mesne profits down to this date.
\nIn  the\t result,  treating  the plaint\tas  I  an  execution
\napplication,  we  direct that the  properties  mentioned  in
\nschedule A to the plaint be partitioned and the\t respondents
\nput  in\t possession of 126 acres 33  cents  in\tKalavacherla
\nvillage\t and  of 10 acres 12 cents in Nandarada\t village  in
\nproceedings  to\t be taken in execution of this\torder.\t The
\nrespondents  will  be  entitled to their share\tof  the\t net
\nincome\tattributable  to 136 acres 45 cents  aforesaid\tfrom
\nthis date down to the date on which they are put in separate
\npossession thereof.\n<\/p>\n
Subject to the modification of the decree of the court below
\nas  stated  above, this appeal will  stand  dismissed.\t The
\nparties will, however, bear their own costs throughout.\n<\/p>\n
955<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Merla Ramanna vs Nallaparaju And Others on 4 November, 1955 Equivalent citations: 1956 AIR 87, 1955 SCR (2) 938 Author: T V Aiyyar Bench: Aiyyar, T.L. Venkatarama 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-120543","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMerla Ramanna vs Nallaparaju And Others on 4 November, 1955 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/merla-ramanna-vs-nallaparaju-and-others-on-4-november-1955\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Merla Ramanna vs Nallaparaju And Others on 4 November, 1955 - 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