9911796707
|
Home
Issues Involved:
1. Whether the decree in O.S. No. 25 of 1927 directed only the sale of mortgage rights and not the properties themselves. 2. Whether the suit is barred under Section 47 of the Civil Procedure Code (CPC). 3. Whether the suit is barred by limitation. 4. Whether the District Court of East Godavari had jurisdiction to entertain the execution application. Issue-wise Detailed Analysis: 1. Sale of Mortgage Rights vs. Properties: The primary issue was whether the decree in O.S. No. 25 of 1927 directed only the sale of the mortgage rights under Exhibit A and not the sale of the properties themselves. The High Court found that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the properties. This finding was confirmed by the District Judge and upheld by the High Court. Consequently, the sale of the properties was deemed not in accordance with the decree, rendering it void. 2. Bar under Section 47 CPC: The appellant contended that the suit was barred under Section 47 CPC, which mandates that questions regarding the execution of a decree should be determined by the executing court and not through a separate suit. The court held that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, such a question could be agitated only by an application under Section 47 CPC and not in a separate suit. The court cited several precedents to support this position, including Venkatachalapathy Aiyen v. Perumal Aiyen and J. Marret v. Md. K. Shirazi & Sons. 3. Limitation: The court analyzed whether the plaint filed on 7-8-1939 could be treated as an application under Section 47 CPC and whether it was barred by limitation. The court held that Article 165 of the Indian Limitation Act did not apply as it pertains to applications by persons other than judgment-debtors. Similarly, Article 166, which applies to applications to set aside a sale, was found inapplicable because the sale was void and did not need to be set aside. The court concluded that Article 181, which provides a three-year limitation period for applications for which no specific period is provided, was applicable. The court held that the right to apply arises by reason of dispossession and not the sale, making the application timely if filed within three years of dispossession. 4. Jurisdiction of District Court of East Godavari: The court examined whether the District Court of East Godavari had jurisdiction to execute the decree in O.S. No. 25 of 1927. The court noted that although the District Court was not the court that passed the decree, it had jurisdiction over the properties when the suit was instituted. The court cited the principle laid down in Balakrishnayya v. Linga Rao, which allows the court to entertain an execution application if the subject-matter of the decree is transferred to its jurisdiction. The court held that the objection to jurisdiction could be waived and, since it was not raised in the written statement, it was not available to the appellant. Conclusion: The Supreme Court concluded that the suit was barred under Section 47 CPC but allowed the plaint to be treated as an execution application under Section 47, provided it was within the limitation period. The court directed that the properties be partitioned and the respondents put in possession of the specified lands, with the respondents entitled to their share of the net income from the properties from the date of the order until possession. The appeal was dismissed with each party bearing its own costs.
|
