04 November 1955
Supreme Court


Case number: Appeal (civil) 183 of 1952






DATE OF JUDGMENT: 04/11/1955


CITATION:  1956 AIR   87            1955 SCR  (2) 938

ACT: Court,  Power  of-Suit to set aside sale held  in  excessive execution  of the decree-Maintainability-Plaint, if  may  be treated  as  an  execution   application-Limitation-Inherent jurisdiction  of  court to whose jurisdiction  the  subject- matter  of  the  decree  is  transferred-Failure  to   raise objection at the earliest stage-Waiver-Code of Civil  Proce- dure  (Act  V of 1908), s. 47-Indian Limitation Act  (IX  of 1908), Arts. 165, 166, 181.

HEADNOTE: The  appellant was the assignee of a mortgage  dated  14-12- 1911, executed by A, which comprised. lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19-7-1909.  The appellant instituted a suit in the  court  of the Subordinate Judge of  Kakinada,  for  the recovery  of  the amount due on the mortgage,  dated  14-12- 1911, and prayed for sale of the hypotheca.  The respondents were  impleaded as defendants but did not appear.  The  suit was  decreed ex parte, and in execution of the  decree,  the properties of the respondents, mortgaged to A on  19-7-1909, were  brought to sale, and purchased by  the  decree-holder. The  respondents  then instituted the present  suit  in  the District Court of East Godavari which then bad  jurisdiction over  the  properties in suit, for a  declaration  that  the decree   obtained  by  the  appellant  was  fraudulent   and inoperative  and could not affect their title.   The  plaint was later on amended and a prayer added that the  properties might  be  partitioned and the respondents put  in  separate possession  of their share.  The trial Judge  dismissed  the suit and the District Court in appeal affirmed his decision. Before the High Court in second appeal it was contended  for the first time that the decree in question did not direct  a sale  of  the mortgaged properties but a sale of  the  mort- gagee’s  rights under the mortgage deed dated 19-7-1909  and as such the sale of the properties was void.  The High Court having  called for a finding from the District Court  as  to what was sold, it was 939 found  by that Court that the decree bad really  directed  a sale  of  the mortgagee’s rights and not of  the  properties



mortgaged  and that there was excessive execution.  It  was, however,  of opinion that the point should have  been  taken before  the  executing court and the suit in so  far  as  it claimed  relief  on  the basis of  excessive  execution  was barred under s. 47 of the Code of Civil Procedure.  The High Court declined to entertain the objection that the suit  was barred  under s. 47 as it had not been taken in the  written statement  and  was  raised for the  first  time  in  second appeal, and decreed the respondent’s suit.  It was contended for   the  appellant  that  the  High  Court   should   have entertained  the  objection and held that the  suit  was  so barred. Held,  that the appellant should be permitted to  raise  the contention.   The point relating to excessive execution  had never been specifically raised except before the High  Court and  the allegations in the plaint were vague  and  obscure. It  is  a  pure question of law which  requires  no  further investigation  of  facts and was understood and  debated  as such by the parties before the District Court. That  it  was  well settled that  the  question  whether  an execution  sale was in excess of the decree and,  therefore, not  warranted by it could be raised as between the  parties only  by an application under s. 47 of the Code  before  the executing court and not by a separate suit. J.   Marret  v.  Md.  K. Shirazi & Sons (A.I.R. 1930  P.  C. 86), Venkatachalapathy Aiyen v. Perumal Aiyen ([1912] M.W.N. 44), Biru Mohata v. Shyania Charan Khowas ([1895] I.L.R.  22 Cal.  483), Abdul Karim v. Islamunnissa Bibi ([1916]  I.L.R. 38  All. 339) and Lakshminarayan v. Laduram  ([1931]  A.I.R. 1932 Bom. 96), approved. That  the court, however, had the power to treat the  plaint in  the  suit as an application under s. 47 subject  to  any objection as to limitation or jurisdiction. That the application was not barred under Art. 165 as it ap- plied only to applications for restoration to possession  by persons  other than judgment-debtors and bad no  application to the present case. Vachali  Bohini  v. Kombi Aliassan’([1919]  I.L.R.  42  Mad. 753), Batnam Aiyar v. Krishna Doss Vital Doss ([1897] I.L.R. 21 Mad. 494, Basul v. Amina ([1922] I.L.R. 46 Bom. 1031) and Bahir Das v.   Girish Chandra ([1922] A.I.R. 1923 Cal. 287), approved. Nor could Art. 166 apply since it had application only where the sale was voidable and not void and had to be set  aside. That the article applicable to a case of a void sale such as the present was Art. 181 of the Indian Limitation Act. Seshagiri Rao v. Srinivasa Rao ([1919] I. L.R. 43 Mad. 313), Bajagopalier v. Bamanujachariar ([1923] I.L.R. 47 Mad. 288), Manmothanoth  Ghose  v. Lachmi Devi ([1927] I.L.R.  55  Cal. 96), Nirode Kali Boy v. Harendra Nath (I.L.R. [1938] 1  Cal. 280), and 119 940 Md  We Gyan v. Maung Than Byu (A.I.R. 1937 Rang.  126),  ap- proved. That  the  starting point of limitation for  an  application under  Art.  181 would be the date of dispossession  by  the purchaser  and  not the date of the void sale which  had  no existence in law and the plaint in the present suit, treated as an application, having been filed ,within 3 years of such dispossession was in time. Chengalraya v. Kollapuri (A.I.R. 1930 Mad. 12), approved. That   the  District  Court  of  East  Godavari   to   whose jurisdiction the properties had been transferred before  the present  suit was instituted had by reason of such  transfer



acquired  an  inherent  jurisdiction over  them  and  if  it entertained  an application for execution with reference  to them such action was no more than an irregular assumption of jurisdiction  and no objection to jurisdiction  having  been taken  by the appellant at the earliest opportunity he  must be deemed to have waived it and, consequently, there was  no legal bar to treating the plaint as an execution application under s. 47 of the Code. Balakrishnayya  v.  Linga  Bao, (I.L.R.  [1943]  Mad.  804), applied. Case-law discussed.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 183 of 1952. Appeal  by special leave from the Judgment and Decree  dated the  16th day of February 1950 of the Madras High  Court  in Second  Appeal No. 1826 of 1945 from Original  Decree  dated the  16th March, 1945, of the Court of District Judge,  East Godavari  at Rajahmundry in A.S. No. 32 of 1943 arising  out of the Decree dated the 31st October, 1942, of the Court  of Sub-Judge,  Rajahmundry in Suit No. 17 of 1940 and O.S.  No. 39 of 1939. B.   Somayya (K.  R. Chaudhury and Naunit Lal, with him) for the appellant. K.   S.  Krishnaswamy Aiyangar, (K.  R.  Krishnaswamy,  with him) for respondents Nos.  I to 4. 1955.   November 4. The Judgment of the Court was  delivered by VENKATARAMA  AYYAR  J.-This is an appeal  by  special  leave against  the judgment of the Madras High Court in  a  second appeal which reversed the concurrent judgments of the courts below, and granted a decree 941 in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent  of 503 acres 18 cents in the village of Kalavacherla and of  10 acres  12 cents out of a parcel of land of the extent of  40 acres  47  cents  in the village of  Nandarada,  with  mesne profits,  past  and future.  All these lands  measuring  543 acres 65 cents were purchased by five co-sharers on 5-6-1888 under  two  sale deeds, Exhibits P and P-1.   One  of  these shares of the extent of about 218 acres was, at the material dates, held in common by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45  cents.  On 19-8-1908 Kumara executed a simple  mortgage, Exhibit  Q, over 81 acres 45 cents belonging to him for  Rs. 1,000  in  favour of Nallapparaju, who  with  his  undivided brother, Achutaramaraju, held a share in the two parcels  of land aforesaid in Kalavacherla and Nandarada.  On  19-7-1909 both  Rangaraju and Kumara executed a mortgage,  Exhibit  A, for  Rs. 2,000 over all the 218 acres belonging to  them  in favour of Achutaramaraju.  On 4-6-1910 Kumara again  created a mortgage over 81 acres 45 cents belonging to him,  Exhibit Q-1  for Rs. 2,500 in favour of Achutaramaraju.   On  14-12- 1911  Achutaramaraju executed a mortgage for Rs.  14,000  in favour   of  one  Merla  Agastayya,  Exhibit  C,  over   the properties which he held in full ownership as co-sharer, and also  the mortgage right which he held over  the  properties belonging  to Rangaraju and Kumara under the three  mortgage deeds, Exhibits Q, A and Q-1.  On 29-8-1920 Kumara sold  the 81  acres  45 cents belonging to him and  comprised  in  the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as  per Exhibit  G,  and thereby the two deeds, Exhibits Q  and  Q-1 became completely discharged and Exhibit A to the extent  of



the  half  share  of Kumara.  The  position  then  was  that Achutaramaraju became the owner of 81 acres 45 cents out  of the  properties mortgaged under Exhibit A, and continued  to be  a  simple mortgagee as regards the rest of them  to  the extent of half the amount due therein.  By virtue of section 70 of the Transfer of 942 Property  Act, the sale under Exhibit G would enure for  the benefit   of  the  mortgagee,  Merla  Agastayya,  being   an accession to the interest of his mortgagor. On 20-1-1924 the representatives of Merla Agastayya assigned their  interests in the mortgage, Exhibit C, to the  present appellant, who instituted O.S. No. 25 of 1927 on the file of the  court of the Subordinate Judge of Kakinada  to  recover the   amount   due  thereon  by  sale  of   the   hypotheca. Achutaramaraju, the mortgagor, and the members of his family were  defendants I to 4 in that suit.  Kumara was  impleaded as  the  14th  defendant  and  Rangaraju  and  his  son   as defendants  15 and 16.  In the plaint, it was  alleged  that the  properties comprised in the mortgage deed,  Exhibit  C, consisted  of the properties belonging to the mortgagors  in full ownership as co-sharers and also of the mortgage  right under  Exhibits Q, A and Q-1.  Then there was an  allegation that  defendants  I  to  4  had  themselves  purchased   the mortgaged   properties  "towards  discharge  of  the   first defendant’s  mortgage debts".  As a statement of fact,  this was not accurate, because the purchase by Achutaramaraju was only  of 81 acres 45 cents belonging to Kumara and  the  re- maining  properties continued to be held by  Rangaraju,  and Achutaramaraju was only a mortgagee thereof under Exhibit A. There were the further allegations that defendants 14 to  16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors-in-title in  respect  of the properties which  were  mortgaged  under Exhibits  Q, A and Q-1.  Then there was the  general  prayer for the sale of the properties. The mortgagors, defendants 1 to 4, entered into a compromise with  the  plaintiff,  while defendants 14  to  16  remained expert.   On 31-1-1931 the suit was decreed in terms of  the compromise  as  against defendants I to 4 and  ex  parte  as against  defendants 14 to 16, and a final decree was  passed on 6-11-1932.  On 23-8-1934 the decree-holder filed E.P. No. 99  of 1934 praying for the sale of the hypotheca  including the properties mentioned in Exhibit A. Defendants 15 and  16 then intervened, and filed an objection to 943 their  being sold on the ground that the mortgage  had  been discharged in 1923, and that the exparte decree against them had  been  obtained  fraudulently.   This  application   was rejected  by  the  Subordinate Judge on  26-8-1935,  and  an appeal against this order to the High Court, Madras was also dismissed on 1-9-1938.  Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81  acres 86-1/2 cents belonged to Rangaraju, were brought to sale  on the  14th and 15th April 1936, and purchased by the  decree- holder  himself.  The sale was confirmed on  26-6-1936,  and possession  taken on 15-12-1936.  But before possession  was taken, on 14-12-1936 Rangaraju and his sons instituted  O.S. No. 268 of 1936 in the District Munsif’s court,  Rajahmundry for a declaration that the decree in O.S. No. 25 of 1927 had been  obtained fraudulently, and that the decree-holder  was not  entitled  to execute the decree as against  their  pro- perties.  An objection was taken to the jurisdiction of  the court  of  the  District  Munsif  to  try  this  suit,   and eventually,  the plaint was returned to be presented to  the



proper  court.  Thereupon, they instituted on  7-8-1939  the present  suit,  O.S.  No.  39 of 1939 on  the  file  of  the District  Court,  East Godavari for a declaration  that  the decree  in 0. S. No. 25 of 1927 was obtained by  suppressing service  of  summons, and was therefore void and  could  not affect  their  title  to  136  acres  45  cents  which  were mortgaged  under Exhibit A. The suit was transferred to  the court  of  the  Subordinate Judge of  Rajahmundry,  and  was numbered as O.S. No. 79 of 1946. In  his  written statement, the appellant  denied  that  the decree in O.S. No. 25 of 1927 was obtained fraudulently, and contended  that the present suit was barred  by  limitation. He  also pleaded that as he had purchased the properties  in execution of the decree and obtained possession thereof, the suit  which was one for a bare declaration that  the  decree was void and inexecutable was not maintainable.  It must  be mentioned that while 81 acres 86-1/3 cents of land belonging to Rangaraju and his sons had been sold on the 14th and 15th April 1936, their remaining properties of the 944 extent  of 54 acres 58-1/2 cents were sold after the  insti- tution of O.S. No. 268 of 1936 in the court of the  District Munsif,  Rajahmundry.  In view of the objections  aforesaid, the  plaintiffs amended the plaint by adding a  prayer  that 136 acres 45 cents out of the total of 543 acres 65 cents in schedule  A and belonging to them might be  partitioned  and put in their separate possession. The  Subordinate Judge of Rajahmundry dismissed the suit  on the ground that no fraud had been established, and that  the suit was barred by limitation in so far as it sought to  set aside  the  decree on the ground of fraud.   The  plaintiffs appealed against this judgment to the District Court of East Godavari,  which  by  its judgment  dated  16th  March  1945 affirmed   the  decree  of  the  Subordinate   Judge.    The plaintiffs then preferred Second Appeal No. 1826 in the High Court, Madras.  There, for the first time the contention was pressed  that the decree in O.S. No. 25 of 1927 on its  true construction  directed  a sale only of the  mortgage  rights which Achutaramaraju had over the A schedule properties, and that  the sale of the properties themselves in execution  of that decree was in excess of what the decree bad  directed., and  was  therefore  void,  and  that  the  plaintiffs  were accordingly   entitled  to  recover  possession   of   those properties  ignoring  the sale.  Satyanarayana Rao,  J.  who heard  the  appeal,  construed the  plaint  as  sufficiently raising  this  question and issue (2) (b) as  covering  this contention,  and accordingly directed the District Judge  to return  a finding on the question as to whether the sale  of the  properties  was warranted by the terms of  the  decree. The  District Judge of East Godavari to whom this issue  was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A. and  that the sale of the properties themselves was not in  accordance with  the  decree.   But he further held that  this  was  an objection  relating  to the execution of  the  decree  which could be agitated only before the executing court, and  that a  separate  suit with reference to that matter  was  barred under section 47, Civil 945 Procedure Code.  On this finding, the second appeal came  up for  final disposal before Satyanarayana Rao, J. who  agreed with the District Judge that the sale of the properties  was not  authorised by the decree, and was therefore void.   But he  declined  to entertain the objection that the  suit  was barred  by section 47, Civil Procedure Code, on  the  ground



that it had not been taken in the written statement, and was a  new contention preferred for the first time at the  stage of  second appeal.  In the result,, he granted a decree  for partition  and  delivery of 136 acres 45 cents  out  of  the properties  mentioned in schedule A to the  plaintiffs,  and mesne profits, past and future.  Against this judgment,  the defendant  prefers the present appeal, and insists that  the suit  is  liable to be dismissed as barred  by  section  47, Civil Procedure Code. On behalf of the appellant, it was contended by Mr.  Somayya that  the question whether having regard to section  47  the suit  was maintainable was argued before the  learned  Judge before  he called for a finding, and that it ought  to  have been  therefore considered on the merits, and that,  in  any event, as it was a pure question of law and went to the root of the matter, it ought to have been entertained.  On behalf of  the  respondents, Mr.  Krishnaswami  Iyengar  vehemently contends that as the objection to the maintainability of the suit  based  on  section 47 was not  taken  in  the  written statement,  the  learned Judge had a discretion  whether  he should  permit the point to be raised for the first time  in second appeal or not, and that we should not interfere  with the  exercise  of that discretion in  special  appeal.   The basis  on  which the suit has now been decreed is  that  the decree  in 0. S. No. 25 of 1927 properly construed  directed only  a sale of mortgage rights under Exhibit A and  not  of the properties, but it must be conceded that this point does not distinctly emerge on the face of the plaint.  It is true that  there are allegations therein which might be  read  as comprehending that question, but they are vague and elusive, and  what is more, this contention was not argued either  in the court of the 946 Subordinate Judge of Rajahmundry or in the District Court of East  Godavari,  and it is only in second  appeal  that  the question appears to have been first thought of in this form. Though  we are not prepared to say that the  allegations  in the  plaint are not. sufficient to cover this point, we  are of the opinion that they are so obscure that it is  possible that the appellant might have missed their true import,  and omitted to plead in answer thereto that the suit was  barred by section 47.  Apart from this, it is to be noted that this point  does  not involve any fresh investigation  of  facts. Indeed,  when  the matter was before the District  Judge  in pursuance  of  the  order of the High Court  calling  for  a finding, counsel on both sides understood it as involving  a decision  on this point as well, and the argument  proceeded on the footing that it was a pure question of law  involving no  further enquiry on facts.  We have  therefore  permitted the appellant to raise this contention. Mr. Somayya for the appellant does not challenge the finding of  the District Court confirmed by the High Court that  the decree  directed  only the sale of the  mortgage  rights  of Achutaramaraju  under  Exhibit A, but he contends  that  the sale in execution of that decree of not merely the  mortgage rights under Exhibit A but of the properties themselves  was excessive  execution against which the  judgment-debtor  was entitled  to obtain relief by application to  the  execution court, and that a separate suit with reference thereto would be  barred  under section 47, Civil Procedure Code.   It  is well  settled that when a sale in execution of a  decree  is impugned on the ground that it is not warranted by the terms thereof,  that  question could be agitated, when  it  arises between parties to the decree, only by an application  under section 47, Civil Procedure Code and not in a separate suit.



In  J.  Marret v. Md.  K. Shirazi & Sons(1) the  facts  were that  an  order was made by the execution  court  directing, contrary  to the terms of the decree, payment of  a  certain fund to the decree-holder.  A separate suit (1)  A.I.R. 1930 P.C. 86. 947 having  been instituted by the judgment-debtor for  recovery of  the  amount on the ground that the payment  was  not  in accordance with the decree, it was held by the Privy Council that  the  action  was  barred under  section  47.   A  case directly  in  point is Venkatachalapathy  Aiyen  v.  Perumal Aiyen(1).   There, the suit was to enforce a mortgage  which related  both  to  properties  held  in  ownership  by   the mortgagor and mortgage rights held by him.  In execution  of the decree passed therein, the properties themselves and not merely  the mortgage rights were sold.  The  judgment-debtor then sued for a declaration that what was sold was only  the mortgage right and to recover possession of the  properties. It  was held that such a suit was barred under  section  47. Vide  also  the decisions in Biru Mahata  v.  Shyama  Charan Khawas(2), Abdul Karim v. Islamunnissa Bibi(3) and  Lakshmi- narayan v. Laduram(4).  The position is, in our opinion, too well settled to be open to argument, and it must accordingly be  held that the present suit is barred under  section  47, Civil Procedure Code. That,  however, does not conclude the matter.   Section  47, clause  (2)  enacts  that "the Court  may,  subject  to  any objection   as  to  limitation  or  jurisdiction,  treat   a proceeding  under  this  section as a suit or a  suit  as  a proceeding...........  Under this provision, this Court  has the  power to treat the plaint presented on 7-8-1939  as  an application  under section 47 provided that on that date  an application  for  the  relief  claimed  was  not  barred  by limitation, and provided further that the court in which  it was  filed  was  competent to execute the  decree.   On  the question of limitation, the relevant dates are the 14th  and 15th,  April 1936, when 81 acres 861 cents belonging to  the plaintiffs were sold, and 15th December 1936 when possession was  taken thereof through court.  As regards the  remaining properties, the exact date on which they were, sold does not appear  on the record, but it is sufficient for the  present purpose  that it was subsequent to the institution  of  O.S. No. 268 of 1936 on   2,0.4 (1)  [1912] M.W.N. 44. (2)  [1895] I.L.R. 22 Cal. 483. (3)  [1916] I.L.R. 38 All. 339. (4)  [1931] A.I.R. 1932 Bom. 96.  120 948 the file of the District Munsif’s court, Rajahmundry,  which was  on  14-12-1936.  Now, the point  for  determination  is whether  the  plaint was barred by limitation  either  under article 165 or article 166 of the Indian Limitation Act,  if it is treated as an execution application presented. on 7-8- 1939, or whether it was in time under article 181. Under  article 165, an application by a person  dispossessed of  immovable  properties  and disputing the  right  of  the decree-holder or purchaser at an execution,sale to be put in possession  must be filed within 30 days  of  dispossession. If   this   is  the  article  applicable  to   the   present proceedings, then it must be held that the plaint treated as an execution application was filed out of time.  In  Vachali Rohini v. Kombi Aliassab(1), a Full Bench of the Madras High Court  has  held, dissenting from the  view  previously  ex-



pressed  in  Ratnam Aiyar v. Krishna Doss Vital  DSS(2)  and following  Abdul Karim v. Mt.  Is amunnissa Bibi  (3),  that this article applies only to applications for being restored to  possession  by persons other than  judgment-debtors,  as under  Order  XXI, rule 100, Civil Procedure Code  and  that applications  by  judgmentdebtors  claiming  relief  on  the ground  that their properties had been erroneously taken  in execution  of the decree are not governed by it.  This  view was  approved and followed in Rasul v. Amina (4)  and  Bahir Das  v. Girish Chandra(1).  We are of the opinion  that  the law has been correctly laid down in the above decisions, and that  in accordance therewith, the present  proceedings  are not barred by article 165. Coming  next to article 166, an application by  a  judgment- debtor  to  set aside a sale in execution of a  decree  has, under that article, to be filed within 30 days of the  sale. If  the  present proceedings are governed by  this  article, there can be no question that they are barred by limitation. But  then,  there  is abundant authority  that  article  166 applies only when the sale is one which has under the law to be   2,0.4 (1)  [1919] I.L.R. 42 Mad. 753. (2)  [1897] I.L.R. 21 Mad. 494. (3)  [1916] I.L.R. 38 All. 339 (4)  [1922] I.L R. 46 Bom. 1031. (5)   [1922) A.I.R. 1923 Cal. 287. 949 set  aside as for example, under Order XXI, rules  8990  and 91,  but  that  it  has no  application  when  the  sale  is inoperative and void.  In Seshagiri Rao v. Srinivasa Rao(1), the  appellant was a party to the -suit, but the decree  had exonerated him from liability.  In execution of the  decree, his three-fourths’ share in the properties was sold on 26-1- 1910  and  purchased  by the  decree-holder  and  possession delivered to him on 16-12-1910.  The appellant then filed  a suit  on 25-7-1911 to set aside the sale on the ground  that it  was in contravention of the decree and  therefore  void. An  objection  having been taken by the defendant  that  the suit was barred under section 47, the court, while upholding the  same,  held  that the plaint could  be  treated  as  an application  under  that  section if it was in  time  as  an execution  application, and the question arose for  decision whether  the  application  was governed by  article  166  or article 181 of the Indian Limitation Act.  It was held that- as the sale was a nullity, it had not to be set aside  under the  law, and therefore the article applicable  was  article 181 and not article 166.  This statement of the law was  ap- proved  by  a  Full  Bench  of  the  Madras  High  Court  in Rajagopalier  v.  Ramanujachariar.  A similar  decision  was given  in, Manmothanath Ghose v. Lachmi Devi(1), wherein  it was  observed by Page, J. that the sale being void need  not have  been set aside at all, and the order to be passed  was "in  substance merely a declaration that the sale  was  null and of no effect".  The question whether an application by a judgmentdebtor  for setting aside a sale on the ground  that there  was  excessive  execution and that the  sale  of  his properties  was in consequence void was governed by  article 166  or  article 181 came up directly for  consideration  in Nirode  Kali Roy v. Harendra Nath(1).  In holding  that  the application  was governed by article 181, B.  K.  Mukherjea, J.,  (as  he then was) observed that "article  166  must  be confined  to cases where the sale is voidable only  and  not void when the execution sale is a nullity, if a party  files an application under



(1)  [1919] I.L.R. 48 Mad. 813. (2)  [ 1928] I.L.R. 47 Mad. 288. (3)  [1927] I.L.R. 55 Cal 96. (4)  I.L.R. [1938] 1 Cal. 280, 950 section 47 to have it pronounced a nullity or for setting it aside  for safety’s sake to avoid future  difficulties,  the proper  article would be article 181 and not article 166  of the Indian Limitation Act".  The decisions in Seshagiri  Rao v.  Srinivasa Rao(1) and Rajagopalier v.  Ramanujachariar(2) were  again  followed in Ma We Gyan v.  Maung  Than  Byu(3), wherein it was held that if the execution sale was void,  it was  not necessary for the applicant to have it  set  aside, and  that  even if there was such a prayer, that  would  not affect  the real nature of the application which was  really "for  an order directing the respondent to deliver  property on  the  ground that there was no valid sale".   We  are  in agreement with these decisions, and hold that when a sale in execution  is  inoperative  and void, an  application  by  a judgment-debtor to have it declared void and for appropriate reliefs is governed by article 181 and not article 166.   On the findings of the courts below that the decree in O.S. No. 25  of 1927 properly construed authorised only the  sale  of the  mortgage rights of Achutaramaraju under Exhibit  A  and not  the  lands  which  were  the  subject-matter  of   that mortgage,  the  respondents were entitled to  apply  to  the court  for delivery of possession of the properties  wrongly sold   through  process  of  court  and  delivered  to   the appellant,  and  such an application would  be  governed  by article 181. Then, there is the further question whether applying article 181, the plaint presented on 7-8-1939 was within time  under that  article.  As already stated, 81 acres 581  cents  were sold on the 14th and 15th April 1936.  If the starting point of  limitation  is the date of -sale, then  the  application must  be held to be barred, -unless the period during  which the  suit was pending in the court of the  District  Munsif, Rajahmundry,  is  deducted under section 14  of  the  Indian Limitation  Act.  But if limitation is to be  reckoned  from the  date  of  dispossession,  then  the  application  would clearly  be in time.  Under article 166, an  application  to set aside a sale must be presented within 30 days thereof. (1) [1919] I.L.R. 43 Mad. 313. (2) (1923] I.L.R. 47 Mad. 288. (3) A.I.R. 1937 Rang. 126. 951 But  if the sale in question was void, and for  that  reason article 166 becomes inapplicable, then the date of the  sale must  vanish as the starting point of limitation, as it  has no  existence in law.  It is not until the purchaser  acting under colour of sale interferes with his possession that the person whose properties have been sold is really  aggrieved, and what gives him right to apply under article 181 is  such interference or dispossession and not the sale.  As observed in  Ma We Gyan v. Maung Than Byu(1), such an application  is really  one  for an order for redelivery of  the  properties wrongly  taken -possession of by the purchaser.  If that  is the correct position, the right to apply arises by reason of dispossession  and not of sale, and the starting  point  for limitation  would be the date of dispossession.  It  was  so held in Chengalraya v. Kollapuri(2).  There, the  properties of a party to the suit who had been exonerated by the decree were  sold  in  execution of that  decree  on  8-1-1918  and purchased by the decree-holder.  It was found that lie  took actual possession of the properties in 1919.  On  23-11-1921



the representatives in interest of the exonerated  defendant commenced   proceedings  to  recover  possession   ,of   the properties  from the decree-holder purchaser on  the  ground that the sale under which he claimed was void.  It was  held that the proper article of limitation applicable was article 181, and that time commenced to run under that article  from the  date not of sale but of actual dispossession, and  that the  proceedings  were accordingly in time.  We  agree  with this  decision, and hold that an application by a  party  to the suit to recover possession of properties which had  been taken  delivery of under a void execution sale would  be  in time  under article 181, if it was filed within three  years of   his  dispossession.   Therefore,  there  is  no   legal impediment to the plaint filed on 7-8-1939 being treated  as an  application under section 47, on the ground that  it  is barred by limitation. The  next question for consideration is whether the  present suit was filed in a court which had jurisdiction to  execute the decree in O. S. No. 25 of 1927. (1) A.I.R. 1937 Rang. 126. (2) A.I.R. 1930 mad. 12. 952 That  was  a  decree  passed by  the  Subordinate  Judge  of Kakinada, whereas the present suit was filed in the District Court,  East Godavari to which the court of the  Subordinate Judge  of  Kakinada  is  subordinate.   Section  38,   Civil Procedure Code provides that a decree may be executed either by the court which passed it or by the court to which it  is sent for execution.  The District Court of East Godavari  is neither the court which passed the decree in O.S. No. 25  of 1927 nor the court to which it had been sent for  execution. But  it  is  common ground that when the  present  suit  was instituted  in  the District Court, East  Godavari,  it  had jurisdiction  over  the properties, which are  the  subject- matter of this suit.  It is true that by itself this is  not sufficient  to make the District Court of East Godavari  the court  which  passed the decree for purpose of  section  38, because  under section 37, it is only when the  court  which passed the decree has ceased to have jurisdiction to execute it  that the court which has jurisdiction over the  subject- matter  when the execution application is presented  can  be considered as the court which passed the decree.  And it  is settled law that the court which actually passed the  decree does  not lose its jurisdiction to execute it, by reason  of the subject-matter thereof being transferred subsequently to the  jurisdiction  of another court.  Vide  Seeni  Nadan  v. Muthuswamy  Pillai(1)  Masrab Khan v.  Debnath  Mali(1)  and Jagannath v. Ichharam(3).  But does it follow from this that the  District  Court, East Godavari has no  jurisdiction  to entertain the execution application in respect of the decree in  O.S.  No.  25  of  1927  passed  by  the  court  of  the Subordinate Judge, Kakinada? There  is  a long course of decisions in the High  Court  of Calcutta that when jurisdiction over the subjectmatter of  a decree  is transferred to another court, that court is  also competent  to entertain an application for execution of  the decree.   Vide Latchman v. Madan Mohun (4), Jahar v.  Kamini Devi(1)  and  Udit  Narayan v. Mathura  Prasad(6).   But  in Ramier v.   2,0.3 (1)  [1919] I.L.R. 42 Mad. 821.  F.B. (2)  I.L.R. [1942] 1 Cal. 289. (3)  A.1 R. 1925 Bom. 414. (4)  [1880] I.L.R. 6 Cal. 513. (5) [1900]   28 Cal, 238.



(6)  [1908] I.L.R. 35 Cal. 974. 953 Muthukrishna Ayyar(1), a Full Bench of the Madras High Court has taken a different view, and held that in the absence  of an  order of transfer by the court which passed the  decree, that court alone can entertain an application for  execution and  not the court to whose jurisdiction the  subject-matter has  been  transferred.   This  view  is  supported  by  the decision  in  Masrab  Khan v. Debnath Mali(1).   It  is  not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in Ramier v. Muthukrishna Ayyar(1) is correct, the present case is governed by the principle laid down in Balakrishnayya  v. Linga  Rao(1).  It was held therein that the court to  whose jurisdiction the subject-matter of the decree is transferred acquires  inherent jurisdiction over the same by  reason  of such transfer, and that if it entertains an execution appli- cation  with reference thereto, it would at the worst be  an irregular assumption of jurisdiction and not a total absence of  it, and if objection to it is not taken at the  earliest opportunity,  it  must be deemed to have  been  waived,  and cannot  be  raised at any later stage  of  the  proceedings. That precisely is the position here.  We have held that  the allegations in the plaint do raise the question of excessive execution,  and  it was therefore open to the  appellant  to have raised the plea that the suit was barred by section 47, and  then, there could have been no question of waiver.   We have,  it  is  true, permitted the appellant  to  raise  the contention  that the present suit is barred by  section  47, and  one of the reasons therefor is that the allegations  in the plaint are so vague that the appellant might have missed their true import.  But that is not a sufficient ground  for relieving him from the consequence which must follow on  his failure to raise the objection in his written statement.  We agree  with the decision in Balakrishnayya v. Linga  Rao(,), and  hold  that the objection to the District  Court  enter- taining an application to execute the decree in 0. S. No. 25 of 1927 is one that could be waived and not (1)  [1932]  I.L.R. 55 Mad. 801. (2) I.L.R. [1942] 1 Cal. 289. (3) I.L.R. [1943] Mad. 804. 954 having  been  taken  in the written  statement  is  not  now available  to the appellant.  There is thus no legal bar  to our treating the plaint presented by the respondents on 7-8- 1939  as an execution application under section 47,  and  in the  interests  of justice, we direct it to be  so  treated. But this should be on terms.  We cannot ignore the fact that it is the gross negligence of the respondents at all  stages that  has been responsible for all the troubles.   They  did not  appear in the suit, and put forward their rights  under Exhibit  A. They intervened at the stage of  execution,  but their complaint was mainly that the ex parte decree had been obtained  by  fraud, a plea which has  now  been  negatived. Even in this suit. they did not press the plea on which they have succeeded until they came to the High Court.  Under the circumstances,  we think it -just that they should  be  dep- rived of all claims for mesne profits down to this date. In  the  result,  treating  the plaint  as  I  an  execution application,  we  direct that the  properties  mentioned  in schedule A to the plaint be partitioned and the  respondents put  in  possession of 126 acres 33  cents  in  Kalavacherla village  and  of 10 acres 12 cents in Nandarada  village  in proceedings  to  be taken in execution of this  order.   The respondents  will  be  entitled to their share  of  the  net



income  attributable  to 136 acres 45 cents  aforesaid  from this date down to the date on which they are put in separate possession thereof. Subject to the modification of the decree of the court below as  stated  above, this appeal will  stand  dismissed.   The parties will, however, bear their own costs throughout. 955