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TMI Blog1955 (11) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... Q, over 81 acres 45 cents belonging to him for ₹ 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 ₹ 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 ₹ 2,500 in favour of Achutaramaraju. On 14-12-1911 Achutaramaraju executed a mortgage for ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 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, O.S. No. 39 of 1939 on the file o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Procedure Code. On this finding, the second appeal came up for final disposal before Satyanarayana Rao, J. who agree 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 7. 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 the facts were that an order was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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 Aliassan I.L.R. [1919] Mad. 75, a Full Bench of the Madras High Court has held, dissenting from the view previously expressed in Ratnam Aiyar v. Krishna Doss, Vital Doss I.L.R. [1897] Mad. 494 and following Abdul Karim v. Mt. Islamunnissa Bibi I.L.R. [1916] All. 339, 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 judgment-debtors claiming relief on the ground that their properties had been erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication by a judgment-debtor 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 I.L.R. [1938] Cal. 280 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 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 I.L.R. [1919] Mad. 313. and Rajagopalier v. Ramanujachariar were again followed in Ma We Gyan v. Maung Than Byu I.L.R. [1923] Mad. 288, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0Mad12 . 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. 12. The next question for consideration is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 I.L.R. [1942] Cal. 289. 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 I.L.R. [1932] Mad. 801, is correct, the present case is governed by the principle laid down in Balakrishnayya v. Linga Rao . It was held therein that the I.L.R. [1943] Mad. 804 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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