Merla Ramanna Vs. Nallaparaju &
Ors  INSC 62 (4 November 1955)
AIYYAR, T.L. VENKATARAMA BHAGWATI, NATWARLAL
SINHA, BHUVNESHWAR P.
CITATION: 1956 AIR 87 1955 SCR (2) 938
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 Procedure (Act V of 1908),
s. 47-Indian Limitation Act (IX of 1908), Arts. 165, 166, 181.
The appellant was the assignee of a mortgage
dated 14-121911, 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 14-121911,
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
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 mortgagee'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 ( M.W.N.
44), Biru Mohata v. Shyania Charan Khowas ( I.L.R. 22 Cal. 483), Abdul
Karim v. Islamunnissa Bibi ( I.L.R.
38 All. 339) and Lakshminarayan v. Laduram
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 applied 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'( I.L.R.
753), Batnam Aiyar v. Krishna Doss Vital Doss
21 Mad. 494, Basul v. Amina ( I.L.R. 46
Bom. 1031) and Bahir Das v. Girish Chandra ( A.I.R. 1923 Cal. 287),
Nor could Art. 166 apply since it had
application only where the sale was voidable and not void and had to be set
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 ( I.
L.R. 43 Mad. 313), Bajagopalier v. Bamanujachariar ( I.L.R. 47 Mad. 288),
Manmothanoth Ghose v. Lachmi Devi ( I.L.R. 55 Cal.
96), Nirode Kali Boy v. Harendra Nath (I.L.R.
 1 Cal.
280), and 119 940 Md We Gyan v. Maung Than
Byu (A.I.R. 1937 Rang. 126), approved.
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.
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
Balakrishnayya v. Linga Bao, (I.L.R. 
Mad. 804), applied. Case-law discussed.
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 14-121911
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
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 remaining properties continued to be held by
Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A.
There were the further allegations that
defendants 14 to 16 were impleaded as parties because they were in possession
of the properties, and that they were the predecessors-in-title in respect of the
properties which were mortgaged under Exhibits Q, A and Q-1. Then there was the
general prayer for the sale of the properties.
The mortgagors, defendants 1 to 4, entered
into a compromise with the plaintiff, while defendants 14 to 16 remained
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 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 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 institution of O.S. No. 268 of 1936 in the court of
the District Munsif, Rajahmundry. In view of the objections aforesaid, the
plaintiffs amended the plaint by adding a prayer that 136 acres 45 cents out of
the total of 543 acres 65 cents in schedule A and belonging to them might be
partitioned and put in their separate possession.
The Subordinate Judge of Rajahmundry
dismissed the suit on the ground that no fraud had been established, and that
the suit was barred by limitation in so far as it sought to set aside the
decree on the ground of fraud. The plaintiffs appealed against this judgment to
the District Court of East Godavari, which by its judgment dated 16th March
1945 affirmed the decree of the Subordinate Judge. The plaintiffs then
preferred Second Appeal No. 1826 in the High Court, Madras. There, for the
first time the contention was pressed that the decree in O.S. No. 25 of 1927 on
its true construction directed a sale only of the mortgage rights which
Achutaramaraju had over the A schedule properties, and that the sale of the
properties themselves in execution of that decree was in excess of what the
decree 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
Vide also the decisions in Biru Mahata v.
Shyama Charan Khawas(2), Abdul Karim v. Islamunnissa Bibi(3) and Lakshminarayan
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)  M.W.N.
(2)  I.L.R. 22 Cal. 483.
(3)  I.L.R. 38 All. 339.
(4)  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 7-81939, 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 expressed 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 judgmentdebtor 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)  I.L.R. 42 Mad. 753.
(2)  I.L.R. 21 Mad. 494.
(3)  I.L.R. 38 All. 339 (4)  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
26-11910 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 thatas 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 approved 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 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(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)  I.L.R. 48 Mad. 813.
(2) [ 1928] I.L.R. 47 Mad. 288.
(3)  I.L.R. 55 Cal 96.
(4) I.L.R.  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
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)  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)  I.L.R. 42 Mad. 821. F.B.
(2) I.L.R.  1 Cal. 289.
(3) A.1 R. 1925 Bom. 414.
(4)  I.L.R. 6 Cal. 513.
(5)  28 Cal, 238.
(6)  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
application with reference thereto, it would at the worst be an irregular
assumption of jurisdiction and not a total absence of it, and if objection to
it is not taken at the earliest opportunity, it must be deemed to have been
waived, and cannot be raised at any later stage of the proceedings.
That precisely is the position here. We have
held that the allegations in the plaint do raise the question of excessive
execution, and it was therefore open to 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 there for 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 entertaining an application to execute the decree in 0. S. No. 25 of 1927
is one that could be waived and not (1)  I.L.R. 55 Mad. 801.
(2) I.L.R.  1 Cal. 289.
(3) I.L.R.  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 7-81939 as an execution
application under section 47, and in the interests of justice, we direct it to
be so treated.
But this should be on terms. We cannot ignore
the fact that it is the gross negligence of the respondents at all stages that
has been responsible for all the troubles. They did not appear in the suit, and
put forward their rights under Exhibit A. They intervened at the stage of
execution, but their complaint was mainly that the ex parte decree had been
obtained by fraud, a plea which has now been negatived.
Even in this suit. they did not press the
plea on which they have succeeded until they came to the High Court. Under the
circumstances, we think it -just that they should be deprived of all claims for
mesne profits down to this date.
In the result, treating the plaint as 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
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.