Merla Ramanna vs Nallaparaju And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 183 of 1952

Decision Date: 4 November 1955

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, Venkatram Ayyar

In the matter titled Merla Ramanna versus Nallaparaju and Others, the Supreme Court of India delivered its judgment on 4 November 1955. The bench that heard the case consisted of Justice Natwarlal H. Bhagwati and Justice Bhuvneshwar P. Sinha, with the names AiyyAr and T. L. Venkatarama also recorded as part of the bench composition. The reported citations for this decision are 1956 AIR 87 and 1955 SCR (2) 938. The issues addressed in the case involved the power of a court to set aside a sale that was alleged to have been executed in excess of the decree, the maintainability of a plaint that might be treated as an execution application, questions of limitation, the inherent jurisdiction of a court when the subject-matter of a decree is transferred, the effect of a failure to raise an objection at the earliest stage, and the doctrine of waiver. Relevant statutory provisions included Section 47 of the Code of Civil Procedure (Act V of 1908) and Articles 165, 166 and 181 of the Indian Limitation Act (IX of 1908). The headnote records that the appellant, Merla Ramanna, was the assignee of a mortgage dated 14 December 1911, executed by an individual referred to as “A,” which comprised lands belonging to the mortgagor. In addition, the respondents had executed a separate mortgage in favour of the appellant on 19 July 1909. The appellant commenced a suit before the Subordinate Judge of Kakinada seeking recovery of the amount due under the 14 December 1911 mortgage and prayed for the sale of the hypothecated property. The respondents were served as defendants but failed to appear, resulting in an ex parte decree. In execution of that decree, the properties mortgaged on 19 July 1909 were brought to sale and were purchased by the decree-holder. Subsequently, the respondents filed a suit in the District Court of East Godavari, claiming that the District Court lacked jurisdiction over the properties in question and seeking a declaration that the decree obtained by the appellant was fraudulent, inoperative, and could not affect the respondents’ title. The plaint was later amended to include a prayer for partition of the properties and for the respondents to be put in separate possession of their respective shares. The trial judge dismissed the suit, and the District Court affirmed that dismissal on appeal. In the second appeal before the High Court, the respondents for the first time contended that the decree did not order a sale of the mortgaged properties but rather a sale of the mortgagee’s rights under the 19 July 1909 mortgage deed, rendering any sale of the properties void. The High Court sought clarification from the District Court regarding what had actually been sold. The District Court found that the decree indeed directed a sale of the mortgagee’s rights and not of the mortgaged properties, and that the execution was therefore excessive. However, the High Court expressed the opinion that such a point should have been raised before the executing court and held that the suit, insofar as it sought relief on the basis of excessive execution, was barred by Section 47 of the Code of Civil Procedure. The High Court declined to entertain the objection on the ground of Section 47 because the objection had not been raised in the written statement and was being raised for the first time at the stage of second appeal.

The court, at the time of the second appeal, decreed the respondent’s suit. The appellant argued that the High Court should have entertained the objection and held that the suit was barred. The Court held that the appellant should be permitted to raise that contention. It observed that the issue of excessive execution had never been specifically raised except before the High Court, and that the allegations in the plaint were vague and obscure. The Court described the matter as a pure question of law that required no further investigation of facts and noted that the parties had understood and debated it as a legal issue before the District Court. The Court affirmed that it was well settled that a claim that an execution sale exceeded the decree and therefore was not authorized could be raised between the parties only by an application under section 47 of the Code of Civil Procedure before the executing court, and not by a separate suit. The decisions in 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) were approved. The Court further held that the court possessed the power to treat the plaint in the suit as an application under section 47, subject to any objection as to limitation or jurisdiction. It found that the application was not barred under Article 165, because that article applied only to applications for restoration of possession by persons other than judgment-debtors, and no such application existed in the present case. The authorities in 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) were approved. The Court ruled that Article 166 could not apply because it related only to sales that were voidable, not to void sales. Consequently, the article applicable to a void sale such as the present one was Article 181 of the Indian Limitation Act. The precedents in 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 Md We Gyan v. Maung Than Byu (A.I.R. 1937 Rang. 126) were approved. The Court explained that the limitation period for an application under Article 181 began on the date of dispossession by the purchaser, not on the date of the void sale which had no legal existence; the plaint, treated as an application, had been filed within three years of that dispossession and was therefore timely. The decision in Chengalraya v. Kollapuri (A.I.R. 1930 Mad. 12) was approved. Finally, the Court noted that the District Court of East Godavari, whose jurisdiction the properties had been transferred to before the present suit was instituted, had acquired inherent jurisdiction over them by reason of such transfer.

The Court observed that the district court had obtained an inherent authority over the lands once they were transferred, and that if the court entertained an execution application concerning those lands, such action would constitute only an irregular assumption of jurisdiction. Because the appellant did not raise any objection to the court’s jurisdiction at the earliest opportunity, the Court held that the appellant must be considered to have waived any such objection. Consequently, the Court found no legal impediment to treating the plaint as an execution application under section 47 of the Code of Civil Procedure. The Court applied the principles set out in Balakrishnayya v Linga Bao, (I.L.R. [1943] Mad. 804). The Court then discussed the relevant case law before proceeding to the judgment of the civil appellate matter.

The appeal, identified as Civil Appeal No 183 of 1952, was filed by special leave against a judgment and decree dated 16 February 1950 of the Madras High Court in Second Appeal No 1826 of 1945. That judgment had affirmed an original decree dated 16 March 1945 of the Court of District Judge, East Godavari at Rajahmundry in Administrative Suit No 32 of 1943, which itself arose from a decree dated 31 October 1942 of the Court of Sub-Judge, Rajahmundry in Suit No 17 of 1940 and Original Suit No 39 of 1939. Counsel for the appellant consisted of a lawyer assisted by two juniors, while counsel for respondents 1 to 4 comprised a senior lawyer with a junior. The judgment of the Court was delivered by Justice Venkatarama Ayyar on 4 November 1955. The Court noted that the High Court’s decision reversed the concurrent judgments of the lower courts and granted a decree in favour of the respondents, ordering partition and possession of 126 acres 33 cents out of a parcel of 503 acres 18 cents in the village of Kalavacherla and 10 acres 12 cents out of a parcel of 40 acres 47 cents in the village of Nandarada, together with mesne profits, both past and future. The total land involved measured 543 acres 65 cents and had been purchased by five co-sharers on 5 June 1888 under two sale deeds, labelled Exhibits P and P-1. At the relevant times, a share of approximately 218 acres was held jointly by two brothers, Rangaraju (owning 136 acres 45 cents) and Kumara (owning 81 acres 45 cents). On 19 August 1908 Kumara executed a simple mortgage, Exhibit Q, over his 81 acres 45 cents for Rs 1,000 in favour of Nallapparaju, who, together with his brother Achutaramaraju, also held a share in the two parcels. On 19 July 1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs 2,000 over the entire 218 acres in favour of Achutaramaraju. Kumara created another mortgage on 4 June 1910, Exhibit Q-1, over his 81 acres 45 cents for Rs 2,500 in favour of Achutaramaraju. Subsequently, on 14 December 1911 Achutaramaraju executed a mortgage, Exhibit C, for Rs 14,000 in favour of Merla Agastayya, covering the properties he held in full ownership as co-sharer, and also the mortgage.

In this case the Court recorded that Merla Agastayya, who held a mortgage right over the properties belonging to Rangaraju and Kumara under the three mortgage deeds identified as Exhibits Q, A and Q-1, later acquired an additional interest by virtue of a sale that took place on 29-8-1920. On that date Kumara transferred his 81 acres and 45 cents, which were already subject to the mortgages, to Achutaramaraju for a consideration of Rs 11,000 as evidenced by Exhibit G. Consequently the two earlier deeds, Exhibits Q and Q-1, were fully discharged, and Exhibit A was discharged to the extent of Kumara’s half-share. After this transaction Achutaramaraju became the absolute owner of the 81 acres and 45 cents that formed part of the property mortgaged under Exhibit A, while he continued to hold the remaining half of the mortgage debt as a simple mortgagee. The Court noted that, pursuant to section 70 of the Transfer of Property Act, the sale documented in Exhibit G operated for the benefit of the mortgagee, Merla Agastayya, by adding to the interest of his mortgagor. On 20-1-1924 the representatives of Merla Agastayya assigned their interest in the mortgage protected by Exhibit C to the present appellant. The appellant thereafter instituted Original Suit No. 25 of 1927 before the Subordinate Judge of Kakinada, seeking recovery of the sum due under the mortgage by ordering the sale of the hypothecated property. In that suit Achutaramaraju, the mortgagor, and members of his family were impleaded as defendants I to IV. Kumara was joined as the fourteenth defendant, and Rangaraju together with his son were joined as defendants XV and XVI. The plaint asserted that the property described in Exhibit C comprised the co-owned lands of the mortgagors and also the mortgage rights created by Exhibits Q, A and Q-1. It further alleged that defendants I to IV had purchased the mortgaged lands “towards discharge of the first defendant’s mortgage debts”. The Court observed that this statement of fact was inaccurate because the purchase by Achutaramaraju pertained solely to the 81 acres and 45 cents belonging to Kumara; the remainder of the property continued to be held by Rangaraju, with Achutaramaraju retaining only a mortgagee’s interest under Exhibit A. Additional allegations stated that defendants XIV to XVI were joined because they were in possession of the properties and were the predecessors-in-title to the lands mortgaged under Exhibits Q, A and Q-1, and the plaint concluded with a general prayer for the sale of the properties. The mortgagors, defendants I to IV, subsequently entered into a compromise with the plaintiff, whereas defendants XIV to XVI remained opposed to the compromise. The Court decreed the suit on 31-1-1931 in accordance with the compromise against defendants I to IV and ex parte against defendants XIV to XVI, and a final decree was recorded on 6-11-1932. Thereafter, on 23-8-1934 the decree-holder filed Execution Petition No. 99 of 1934 requesting the sale of the hypothecated property, including the lands described in Exhibit A. Defendants XV and XVI intervened, objecting to the proposed sale on the ground that the mortgage had been discharged in 1923 and that the ex parte decree against them had been obtained by fraud. The Subordinate Judge dismissed the objection on 26-8-1935, and an appeal against that order to the Madras High Court was also dismissed on 1-9-1938.

In this case the plaintiffs asserted that the mortgage had been discharged in 1923 and that the ex parte decree issued against them had been obtained by fraud. They filed an application to set aside the decree, but the Subordinate Judge rejected the application on 26-8-1935, and an appeal of that rejection to the Madras High Court was dismissed on 1-9-1938. During the intervening period, on 14 and 15 April 1936, 163 acres and 18 cents of the property mortgaged under Exhibit A, including 81 acres and 86½ cents belonging to Rangaraju, were placed on sale and were purchased by the decree-holder himself; the sale was confirmed on 26-6-1936 and possession was taken on 15-12-1936. However, before possession could be taken, on 14-12-1936 Rangaraju and his sons instituted Original Suit No. 268 of 1936 in the District Munsif’s Court at Rajahmundry, seeking a declaration that the decree in Original Suit No. 25 of 1927 had been fraudulently obtained and that the decree-holder therefore had no right to execute the decree against their properties. An objection to the jurisdiction of the District Munsif’s Court was raised, and the plaint was ultimately returned for filing in the appropriate court. Consequently, on 7-8-1939 the plaintiffs filed the present suit, Original Suit No. 39 of 1939, in the District Court of East Godavari, requesting a declaration that the decree in O.S. No. 25 of 1927 had been obtained by suppressing service of summons, rendering it void and incapable of affecting their title to 136 acres and 45 cents mortgaged under Exhibit A. The suit was later transferred to the Subordinate Judge’s Court at Rajahmundry and re-numbered as O.S. No. 79 of 1946. In the written statement filed by the appellant, it was denied that the decree in O.S. No. 25 of 1927 had been obtained fraudulently; the appellant also contended that the present suit was barred by limitation and that, having purchased the properties in execution of the decree and taken possession, a suit merely seeking a bare declaration that the decree was void and inapplicable could not be maintained. It should be noted that while 81 acres and 86⅓ cents of land belonging to Rangaraju and his sons were sold on 14-15 April 1936, the remaining 54 acres and 58½ cents of their properties were sold only after the institution of O.S. No. 268 of 1936 in the District Munsif’s Court, Rajahmundry. In response to the jurisdictional objections, the plaintiffs amended the plaint to include a prayer that 136 acres and 45 cents, out of a total of 543 acres and 65 cents shown in Schedule A and belonging to them, be partitioned and placed in their separate possession. The Subordinate Judge of Rajahmundry dismissed the suit, finding that no fraud had been proven and that the suit was barred by limitation insofar as it sought to set aside the decree on the ground of fraud. The plaintiffs appealed this dismissal to the District Court of East Godavari, which, by its judgment dated 16 March 1945, affirmed the decree of the Subordinate Judge.

After the decree of the Subordinate Judge, the plaintiffs filed Second Appeal No 1826 before the Madras High Court. For the first time they asserted that the decree recorded in O.S. No 25 of 1927, when properly understood, ordered only the sale of the mortgage rights that Achutaramaraju held over the properties listed in Schedule A, and that the subsequent sale of the properties themselves exceeded the authority granted by the decree and was therefore void. Consequently, the plaintiffs claimed they were entitled to recover possession of those properties despite the execution of the sale. Justice Satyanarayana Rao, who heard the appeal, held that the plaintiffs’ plaint sufficiently raised this question as issue (2)(b). He therefore directed the District Judge of East Godavari to return a finding on whether the sale of the properties was authorized by the terms of the decree. The District Judge examined the issue and concluded that the decree indeed authorized only the sale of Achutaramaraju’s mortgage rights under Exhibit A, and that the sale of the properties themselves was not in accordance with the decree. However, he observed that this objection related to the execution of the decree and could be raised only before the executing court, and that any separate suit concerning that matter was barred by Section 47 of the Civil Procedure Code. When the matter returned to the High Court for final disposal, Justice Satyanarayana Rao agreed with the District Judge that the sale of the properties lacked authority and was void. He declined to consider the objection under Section 47 because it had not been raised in the written statement and represented a new contention introduced for the first time at the stage of the second appeal. Accordingly, he issued a decree granting partition and delivery of 136 acres 45 cents of the Schedule A properties to the plaintiffs, together with mesne profits, both past and future.

The defendant appealed against this judgment, contending that the suit should be dismissed as barred by Section 47 of the Civil Procedure Code. Counsel for the appellant argued, through Mr Somayya, that the question of maintainability under Section 47 had been raised before the learned Judge before he sought a finding, and therefore it ought to have been considered on the merits. He further maintained that, being a pure question of law that struck at the core of the dispute, the issue should have been entertained. Counsel for the respondents, represented by Mr Krishnaswami Iyengar, sharply contested this view, asserting that because the objection to maintainability based on Section 47 was not included in the written statement, the learned Judge possessed discretion as to whether to permit the point to be raised for the first time in the second appeal. He emphasized that such discretion should not be disturbed by the special appeal, and that the procedural rule required the objection to be presented earlier in the proceedings.

In this matter the Court examined whether the discretion exercised by the lower courts to allow the point of law in the second appeal should be disturbed by the present special appeal. The decree that formed the basis of the suit derived from judgment numbered 0 S No 25 of 1927, which, when correctly interpreted, authorized only the sale of the mortgage rights described in Exhibit A and not the sale of the underlying properties. Nonetheless, this distinction was not plainly evident from the face of the plaint. The plaint contained certain allegations that might, if interpreted loosely, be said to include the issue, but those allegations were vague and elusive. Moreover, the contention that the decree dealt solely with mortgage rights and not with the properties had not been raised before either the Subordinate Judge of Rajahmundry or the District Court of East Godavari; it first appeared in the second appeal. The Court did not conclude that the plaint was insufficient to cover the point, but held that the pleadings were so obscure that the appellant could have failed to appreciate their true significance and consequently omitted to plead that the suit was barred by section 47 of the Civil Procedure Code. The Court also noted that the issue did not require any fresh investigation of facts. When the dispute reached the District Judge pursuant to the High Court’s order for a finding, counsel for both sides understood that the matter involved a decision on a pure question of law without any further factual enquiry, and the argument proceeded on that basis. Accordingly, the Court permitted the appellant to raise the contention. Counsel for the appellant, without challenging the finding of the District Court, affirmed by the High Court, that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A, but argued that the execution of the decree had resulted in a sale not merely of those mortgage rights but of the properties themselves, which constituted an excessive execution. The appellant maintained that the judgment-debtor was entitled to obtain relief from the execution court and that any separate suit seeking such relief would be barred under section 47 of the Civil Procedure Code. The Court reiterated the settled principle that when a sale in execution is contested on the ground that it exceeds the terms of the decree, the objection may be raised only by an application under section 47 of the Code and not by a separate suit. The Court cited the authority of J. Marret v. Md. K. Shirazi & Sons (1) to illustrate that when an execution court issued an order contrary to the decree, a subsequent suit for recovery of the amount was held by the Privy Council to be barred under section 47.

In the present matter, the Court referred to earlier authority that when payment ordered by a decree is not made in accordance with that decree, the appropriate remedy is an application under section 47 of the Civil Procedure Code, and any separate suit is barred. The Privy Council, in the case cited, held that a suit filed on the ground that the payment was not in accordance with the decree was barred by section 47. A directly comparable case is Venkatachalapathy Aiyen v. Perumal Aiyen (1). In that case the plaintiff sought to enforce a mortgage that covered both the mortgagor’s title-share in the land and the mortgagor’s mortgage rights. When the decree was executed, the court ordered sale of the land itself rather than merely the mortgage rights. The judgment-debtor then instituted a suit asking for a declaration that only the mortgage right had been sold and for possession of the land. The Court held that this suit also fell squarely within the bar created by the provisions of section 47 of the Code. The same principle was reiterated in Biru Mahata v. Shyama Charan Khawas (2), Abdul Karim v. Islamunnissa Bibi (3) and Lakshmi-narayan v. Laduram (4). The Court observed that the law on this point is settled and left no room for argument, and therefore the present suit must be dismissed as barred by section 47 of the Civil Procedure Code.

Nevertheless, the Court noted that the conclusion that the suit is barred does not terminate the enquiry, because section 47, clause (2) provides 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. Accordingly, the Court possessed the authority to regard the plaint filed on 7-8-1939 as an application under section 47. This treatment was permissible provided that on that date the relief sought was not time-barred and that the court where the application was presented had jurisdiction to execute the decree. To assess the limitation issue, the Court identified the specific dates on which the execution of the decree had taken place. The first parcel of land, comprising 81 acres and 861 cents, was sold on 14-15 April 1936, and possession of that parcel was taken by court order on 15 December 1936. For the remaining properties the exact sale dates were not recorded, but the record showed that the sales occurred after the filing of O.S. No. 268 of 1936 on 20-April-1936. They also occurred after the entry of the case file in the District Munsif’s Court at Rajahmundry on 14-12-1936. The Court then posed the question whether the plaint, if treated as an execution application filed on 7-8-1939, was barred by limitation under article 165 or article 166 of the Indian Limitation Act. Alternatively, the Court considered whether the suit fell within the time period prescribed by article 181 of the same Act. Article 165 requires that a person dispossessed of immovable property and disputing the right of the decree-holder or purchaser at an execution sale must file an application for possession within thirty days of dispossession. If article 165 applied to the present case, the Court would have to conclude that the plaint was time-barred. The Court referred to the decision in Vachali Rohini v. Kombi Aliassab (1) for guidance on the application of article 165.

In this matter, a Full Bench of the Madras High Court held, dissenting from the earlier view expressed in Ratnam Aiyar v. Krishna Doss (2) and following Abdul Karim v. Mt. Is amunnissa Bibi (3), that article 165 of the Indian Limitation Act applies only to applications for restoration of possession by persons who are not judgment-debtors, as prescribed in Order XXI, rule 100 of the Civil Procedure Code. The Bench further observed that applications filed by judgment-debtors who seek relief on the ground that their immovable property was erroneously taken in execution of a decree are not governed by article 165. This reasoning was subsequently approved and followed in Rasul v. Amina (4) and Bahir Das v. Girish Chandra (1). The Court is of the opinion that the law has been correctly laid down in the above decisions and, accordingly, the present proceedings are not barred by article 165.

The discussion then turned to article 166, which requires that an application by a judgment-debtor to set aside a sale in execution of a decree be filed within thirty days of the sale. If the present proceedings were governed by article 166, they would be time-barred. However, abundant authority holds that article 166 applies only when the sale is one which, under law, may be set aside—for example under Order XXI, rules 89, 90 and 91—and that the article has no application where the sale is inoperative and void. The authorities cited in support of this view include (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, and (5) [1922] A.I.R. 1923 Cal. 287. In Seshagiri Rao v. Srinivasa Rao (1), the appellant, although a party to the suit, had been exonerated from liability by the decree. In execution of that decree, his three-fourths share in the property was sold on 26-1-1910, purchased by the decree-holder, and possession was delivered on 16-12-1910. The appellant subsequently filed a suit on 25-7-1911 to set aside the sale on the ground that it contravened the decree and was therefore void. The defendant objected that the suit was barred under section 47. The court, while upholding the objection, held that the plaint could be treated as an application under that section if it was filed in time as an execution application, and thus the question arose whether article 166 or article 181 of the Indian Limitation Act governed the application. The court concluded that, because the sale was a nullity, it did not need to be set aside under the law, and consequently article 181, not article 166, was applicable. This statement of law was approved by a Full Bench of the Madras High Court in Rajagopalier v. Ramanujachariar. A similar decision was rendered in Manmothanath Ghose v. Lachmi Devi (1), where Page, J. observed that a void sale need not be set aside.

In this case the Court observed that the order sought was essentially a declaration that the sale was null and of no effect. The issue was whether a judgment-debtor’s application to set aside a sale on the ground of excessive execution, thereby rendering the sale of his property void, should be governed by article 166 or article 181 of the Indian Limitation Act. The matter arose directly in Nirode Kali Roy v. Harendra Nath. Justice B. K. Mukherjea, who then sat as a judge, held that article 166 is limited to situations where the sale is merely voidable and not where the execution sale is a nullity. He explained that if a party files an application under section 47 to have the sale pronounced a nullity or to set it aside for safety and to avoid future difficulties, the appropriate provision is article 181 and not article 166 of the Indian Limitation Act. The decisions in Seshagiri Rao v. Srinivasa Rao and Rajagopalier v. Ramanujachariar were again followed in Ma We Gyan v. Maung Than Byu, where it was held that when the execution sale is void, the applicant does not need to have it set aside, and even if a prayer for that is made, it does not change the true nature of the application, which is really for an order directing the respondent to deliver the property on the ground that there was no valid sale. The Court agreed with these precedents and affirmed that when an execution sale is inoperative and void, an application by a judgment-debtor to have it declared void and to obtain appropriate relief is governed by article 181 and not article 166. On the basis of the findings of the lower courts that the decree in O.S. No. 25 of 1927, when properly construed, authorised only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the lands that were the subject-matter of that mortgage, the respondents were entitled to apply to the court for delivery of possession of the properties that had been wrongly sold through the court process and delivered to the appellant, and such an application would be governed by article 181. The Court then turned to the further question of whether, applying article 181, the plaint presented on 7-8-1939 was within the prescribed period. As previously noted, 81 acres and 581 cents were sold on 14 and 15 April 1936. If the limitation period is measured from the date of sale, the application would 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. However, if limitation is to be measured from the date of dispossession, the application would clearly be timely.

The Court observed that, according to article 166, an application seeking to set aside a sale must be presented within thirty days of the date of that sale. The Court referred to the authority of I.L.R. 43 Mad. 313 (1919), I.L.R. 47 Mad. 288 (1923) and A.I.R. 126 (1937 Rang). However, the Court held that if the sale in question is void, article 166 ceases to apply, and consequently the date of the void sale cannot serve as the starting point for the limitation period because the sale has no legal existence. The Court explained that a grievance arises only when the purchaser, acting under the colour of the sale, interferes with the possession of the original owner. It is such interference or dispossession, not the void sale itself, that gives the original owner the right to invoke article 181. The Court cited Ma We Gyan v. Maung Than Byu, observing that an application in such circumstances is essentially a request for an order directing the redelivery of property wrongly taken into possession by the purchaser. Accordingly, the right to apply is triggered by dispossession, and the limitation period must be counted from the date of dispossession.

The Court then examined the decision in Chengalraya v. Kollapuri. In that case, the properties of a party who had been exonerated by a decree were sold under execution of the decree on 8 January 1918 and were purchased by the decree-holder. The purchaser actually took possession of the properties in 1919. On 23 November 1921, the representatives of the exonerated defendant commenced proceedings to recover possession on the ground that the sale was void. The Court in Chengalraya held that the appropriate limitation provision was article 181 and that the limitation period began to run from the date of actual dispossession, not from the date of sale, rendering the proceedings timely. The present Court agreed with that reasoning and held that an application filed by a party to recover possession of property delivered under a void execution sale is timely under article 181 if it is filed within three years of dispossession. Accordingly, there is no legal obstacle to treating the plaint filed on 7 August 1939 as an application under section 47, and it cannot be said to be barred by limitation.

The Court then turned to the question of jurisdiction. It noted that the decree in O.S. No. 25 of 1927 was passed by the Subordinate Judge of Kakinada, while the present suit was instituted in the District Court, East Godavari, which is the court to which the Subordinate Judge of Kakinada is subordinate. Section 38 of the Civil Procedure Code provides that a decree may be executed either by the court that passed it or by the court to which it is sent for execution. The Court observed that the District Court, East Godavari, is neither the court that passed the decree nor the court to which the decree was sent for execution.

The Court observed that the District Court of East Godavari was neither the court that passed the decree in O.S. No. 25 of 1927 nor the court to which that decree had been sent for execution. Nevertheless, it was unanimously agreed that when the present suit was instituted in the District Court, East Godavari, that court possessed jurisdiction over the properties that formed the subject-matter of the suit. The Court noted, however, that this fact alone did not suffice to deem the District Court of East Godavari the court that passed the decree for the purposes of section 38 of the Code of Civil Procedure. Under section 37, only when the court that originally passed the decree has ceased to have jurisdiction to execute it may a court that now has jurisdiction over the subject-matter, at the time an execution application is presented, be treated as having passed the decree. The Court further stated that settled law holds that a court which originally passed a decree does not lose its jurisdiction to execute that decree merely because the subject-matter of the decree is subsequently transferred to the jurisdiction of another court. The Court cited the authorities Seeni Nadan v. Muthuswamy Pillai( 1), Masrab Khan v. Debnath Mali( 1) and Jagannath v. Ichharam( 3) in support of this principle. The Court then asked whether, on that basis, the District Court, East Godavari, therefore lacked jurisdiction to entertain an execution application concerning the decree in O.S. No. 25 of 1927 that had been passed by the court of the Subordinate Judge, Kakinada. The Court pointed out a long line of decisions of the High Court of Calcutta holding that when jurisdiction over the subject-matter of a decree is transferred to another court, that court also acquires competence to entertain an application for execution of the decree. The Court referred to Latchman v. Madan Mohun( 4), Jahar v. Kamini Devi( 1) and Udit Narayan v. Mathura Prasad( 6). The Court then considered the contrary view expressed in Ramier v. Muthukrishna Ayyar( 1), a Full Bench of the Madras High Court, which held that in the absence of an explicit order of transfer by the court that passed the decree, only that original court could entertain an execution application, and not the court to whose jurisdiction the subject-matter had been transferred. This view, the Court noted, was supported by the decision in Masrab Khan v. Debnath Mali( 1). The Court stated that it was unnecessary to resolve which of these two contradictory positions is correct, because even assuming the opinion expressed in Ramier v. Muthukrishna Ayyar( 1) to be correct, the present case is governed by the principle laid down in Balakrishnayya v. Linga Rao( 1). In that case, it was held that the court to whose jurisdiction the subject-matter of a decree is transferred acquires inherent jurisdiction over that decree by virtue of the transfer, and that if such a court entertains an execution application with reference to the decree, at worst it commits an irregular assumption of jurisdiction, not a complete lack of jurisdiction.

The Court explained that when an objection is not raised at the earliest possible moment, it is regarded as waived and cannot be revived later in the proceedings. This principle applied to the present matter. The Court observed that the allegations contained in the plaint raised the issue of excessive execution, and therefore the appellant could have contended that the suit was barred by section 47, a position that would have avoided any question of waiver. Although the Court allowed the appellant to argue that the suit was barred by section 47 on the ground that the plaint’s allegations were so vague that the appellant might not have understood their true import, this reason was not sufficient to excuse the appellant from the consequence of failing to raise the objection in his written statement. Relying on the decision in Balakrishnayya v. Linga Rao (,), the Court held that the objection to the District Court’s decision to entertain an application to execute the decree in O. S. No. 25 of 1927 could be waived if it had not been taken in the written statement, and therefore the objection is no longer available to the appellant. Consequently, there is no legal impediment to treating the plaint filed by the respondents on 7-8-1939 as an execution application under section 47, and in the interest of justice the Court directed that it be treated as such, subject to certain conditions.

The Court could not overlook the respondents’ gross negligence at every stage, which caused the difficulties in the case. The respondents had failed to appear in the original suit and had only asserted their rights under Exhibit A. They intervened only at the execution stage, primarily alleging that the ex parte decree had been obtained by fraud, a claim that had since been rejected. Even in the present suit, the respondents did not press the successful plea until they reached the High Court. Given these circumstances, the Court deemed it just to deprive the respondents of all claims for mesne profits up to the present date. Accordingly, treating the plaint as an execution application, the Court ordered that the properties listed in Schedule A of the plaint be partitioned and that the respondents be placed in possession of 126 acres 33 cents in Kalavacherla village and 10 acres 12 cents in Nandarada village through execution proceedings. The respondents were entitled to receive their share of the net income attributable to the total of 136 acres 45 cents from the date of this order until they are separately possessed of the land. Subject to the modification of the lower court’s decree as outlined, the appeal was dismissed, with each party bearing its own costs throughout the proceedings.

The Court concluded that the appeal could not be allowed to proceed and therefore ordered that it be dismissed in its entirety. In accordance with that determination, the Court further directed that each party to the proceedings shall be responsible for paying its own costs, and that this obligation to bear costs shall apply to the whole course of the litigation, from the commencement of the suit through all subsequent stages, including any further procedural steps that may arise as a consequence of the dismissal. No party shall be required to make any contribution toward the legal expenses incurred by the other side, and each side shall bear the expense of its own counsel, filing fees, and any other charges that have been or will be incurred in connection with the matter. This allocation of costs reflects the Court’s view that the issues presented did not merit a shift of the financial burden to the opposing party, and that the parties must each shoulder the costs associated with defending or pursuing their respective positions throughout the entire proceedings.