Case: Merla Ramanna Vs. Nallaparaju And Others

1. 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 Court below, and granted, a decree 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 Kalvacherla 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-shares on 5-6-1888 under two sale deeds, Exs. P. andOne 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; Ex. Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Arhutaramaraju, 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, Ex. 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, Ex. Q-1 for Rs. 2,500 in favour of Achutaramaraju. On 14-2-1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Ex. 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, Exs. Q,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 Ex. G. and thereby the two deeds, Exs. Q and Q-1 became completely discharged and Ex 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 Ex. 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 S. 70 Transfer of Property Act, the sale under Ex G would enure for the benefit of the Mortgagee, Marla 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, Ex. C, to the present appellant, who instituted O. S. No. 25 of 1927 or the file of the Court of the Subordinate Judge of Kakinda to recover the amount due thereon by sale of the hypoteca. Achutaramaraju, the mortgagor, and the members of his family were defendants 1 to 3 in thatwas impleaded as defendant 14 and Rangaraju and his son as defendants 15 and 16. In the plaint, it was alleged that the properties comprised in the mortgage deed, Ex. C. consisted of the properties belonging to the mortgagors in full ownership as co-sharers and also of the mortgage right under Exs. Q, A andThen there was an allegation that defendants 1 to 4 had themselves purchased the mortgaged properties "towards discharge of defendant 1s 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 Ex. A.There were the further allgations 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 Exs. Q, A andThen there was the general prayer for the sale of the properties.The mortgagors, defendant 1 to 4, entered into a compromise with the plaintiff, while defendants, 14 to 16 remained ex parte. On 31-1-1931 the suit was decreed in terms of the compromise as against defendants 1 to 4 and ex-parte as against defendants 14 to 16 and a final decree was passed onOn 23-8-1934 the decree-holder file E. P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Ex. A.Defendants 15 and 16 then intervened and filed an objection to their being sold 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 as 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 Ex. A, of which 81 acres 861/2 cents belonged to Rangaraju were brought to sale on 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 Munsifs 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 O. S. No. 25 of 1927 was obtained by suppressing service of summons and was, therefore, void and could not affect their title of 136 acres 45 cents which were mortgaged under Ex. A. The suit was transferred to the Court of the Subordinate Judge of Rajahmundry, and was numbered as O. S. 79 of 1940.In this 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 as 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 thus while 81 acres 861/2 cents of lands belonging to Rangaraju and his sons had been sold on 14th and 15th April 1936 their remaining properties of the 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 Sch. 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 16-3-1945 affirmed the decree of the Subordinate Judge. The Pliantiffs 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 had 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 Ex. 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 S. 47 Civil P. C. On this finding the second appeal came up for final disposal before Satyanarayana Rao, J. Who agreed with the District Judge that that 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 S. 47, Civil P. C., 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 Sch. A to the plaintiffs, and mense profits, past and future. Against this Judgment, the defendant prefers the present appeal; and insists that the suit as liable to be dismissed as barred by S. 47, Civil P. C.

Reasoning:
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 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 S.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, as 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 thisis 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 S. 47, Civil P. C. and not in a separateare 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 Art.are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, and application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by Art. 181 and not Art. 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 Ex. 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 Courts and delivered to the appellant, and such an application would be governed by Art.wad held that the proper article of limitation applicable was Art. 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 Art. 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 S. 47, on the ground that it is barred byd held that the proper article of limitation applicable was Art. 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 Art. 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 S. 47, on the ground that it is barred byis 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 S. 38, because under S. 37, it is only when the Court which passed the decree 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 anotherwas 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 as 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 S. 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 S. 47, and one of the reasons, therefore, 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 AIR 1943 Mad 449  (W), and hold that the objection to the District Court entertaining an application to execute the decree in O. S. No. 25 of 1927 is one that could be waived and not having been taken in the written statement is 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 S. 47, and in the interest of justice, we direct it to be so treated. But this should be no terms.