A. Venkataseshayya and others vs A. Virayya and others

Subba Rao, C.J.—The following two questions have been referred to the Full Bench by a Division Bench of this Court.

Whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason of the prohibition contained in S. 5 or Madras Act III of 1895, it is open to the inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at a Court sale or resist the claim of the purchaser to be put in possession of the lands?

Whether S. 47 of the CPC is a bar to the maintainability of the suit?

The facts relevant for appreciating the questions raised may be briefly narrated. The appellants filed O. S. No. 279 of 1945 in the Court of the District Munsiff, Ongole, for a permanent injunction restraining the defendants from interfering with their possession and enjoyment of items 1 and 2 of the plaint schedule which are carpenter service inam lands held by the family. The appellants mortgaged those items to the 1st defendant. On the foot of the mortgage the 1st defendant filed O. S. No. 276 of 1940 in the Court of the District Munsiff, Ongole, and obtained a decree therein. In execution of that decree, the said items were brought to sale and purchased by the 1st defendant. The sale was duly confirmed. Thereafter, the 1st defendant sold the said items to the 2nd defendant. The plaintiffs filed the aforesaid suit for a permanent injunction on the ground that the decree for sale and the subsequent sale in execution were null and void. The 2nd defendant contested the suit. The learned District Munsif dismissed the suit on the ground that Ss. 11 and 47 of the CPC operated as a bar to the maintainability of the suit. On appeal, the learned Subordinate Judge agreed with the view of the District Munsiff on both the points. The plaintiffs preferred a second appeal to this Court. Viswanatha Sastry, J., in view of the conflicting decisions on the questions, referred the case to a Division Bench which, in its turn, referred the aforesaid questions to the Full Bench.

Learned counsel for the appellants argued that the Court, which passed the mortgage decree, had inherent want of jurisdiction to direct the sale of a carpenter service inam and that the decree directing sale of the said mam and the sale held pursuant to the decree were nullities and, therefore, could not operate as res judicata. The reply of the learned counsel for the respondents may be stated trus. The Court, which decided the mortgage suit had jurisdiction to decide whether a particular property was alienable or not and the appellants, not having raised the plea of inalienability either in the suit or in the execution proceedings, are now precluded by the principles of constructive res judicata from questioning their validity.

At the outset, it will be convenient to restate briefly the well-settled principles of res judicata relevant to the present enquiry Under S. 11, C.P.C., no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom any of them claim. It is a self-evident proposition that a judgment delivered by a Court not competent to deliver it cannot operate as res judicata. Nor can a judgment obtained by fraud or collusion have that effect. The said instances are not really exceptions to the rule of res judicata but, as the judgments are void, there is no scope for invoking that section. Explanation IV to S. 11 introduces the rule of constructive res judicata where under any matter, which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Such a ground of defence or attack must be deemed to be constructively in issue in the suit and must be deemed to have been decided one way or other depending upon the decree issued in the case. The rule of res judicata embodied in S. 11 does not exempt from its operation issues raising questions of public policy depending upon either common law or statutory prohibitions. It has also been held that S. 11 is not exhaustive and that the principle of res judicata could be applied to interlocutory orders and to execution proceedings. See Ram Kirpal v. Rup Kuari, ILR 6 All 269 (PC) (A). So, too, it has been recognised by decided cases that the principles of constructive res judicata can also be invoked to a limited extent in the case of orders made in execution. So much is granted.

The conflicting arguments of the learned counsel centred round the question whether the decree for sale of the carpenter service inam and the sale pursuant thereto were made without jurisdiction. Unhampered, and uninfluenced by the decisions cited at the bar, I shall attempt to test the relative ''merits of the arguments advanced on the basis of the aforesaid principles. Can it be said in the instant case that the District Munsiff''s Court, Ongole, which entertained O. S. No. 276 of 1940, the suit filed by the 1st defendant on the foot of the mortgage and which passed a decree therein had no jurisdiction to do so? There is an essential distinction between the question of the jurisdiction of a Court to entertain a suit and the rule of law which precludes a man from avowing the same, thing in successive litigations. There is also a marked difference between inherent want of jurisdiction to entertain a matter and the irregular exercise of it. The jurisdiction of a Court depends upon the pecuniary and territorial limits laid down by law and also on the subject-matter, while the doctrine of res judicata operates on the decision of a Court in a suit or other proceeding which the Court had inherent jurisdiction to entertain. If in the instant case, the District Munsifs. Court had want of inherent jurisdiction to entertain the suit to enforce the mortgage, the decision therein would not operate as res judicata in the present suit. The Court had admittedly pecuniary and territorial jurisdiction to entertain the suit to enforce the mortgage. It had also jurisdiction to decide whether the mortgage was valid or not having regard to the provisions of Act III of 1895. If the plaintiff had raised the plea therein that the mortgaged properties were carpenter service inams and, therefore, the mortgage was invalid, the Court would have raised the relevant issue and decided whether the suit items were carpenter service inams and, if so, whether the mortgage was invalid. Such a decision would have been by a competent Court having jurisdiction to entertain the suit and, therefore, binding upon the parties and their representatives. Should it be held that a finding of the Court that the land was not a service inam on a specific issue raised before it, would not operate as res judicata between the parties in a subsequent suit, that question could never be finally decided for, in every subsequent suit that question could be raised between the Parties on the ground that the Court in the earlier suit exercised jurisdiction which it had not or refused to exercise one which it had. The principle that where a statute confers on a Tribunal jurisdiction subject to a condition, it cannot clutch at jurisdiction by deciding wrongly the existence of that condition, has no application to the decision of a Court in regard to questions that legitimately arise for decision in the course of a suit maintainable therein. If so much is conceded I do not see any reason why the principle of constructive res judicata cannot be invoked in regard to the decision of a Court in such a suit Explanation IV to S. 11 does not impose any such limitation. If the appellants who could have non-suited the plaintiff by raising the question of the inalienability of the carpenter service inam, did not raise it, by reason of that Explanation, the said question must be deemed to have been constructively in issue in the suit. When a decree was made, the Court must be deemed to have decided that the said property was alienable property and, therefore, the said decree would operate as res judicata in a subsequent suit. The same reasoning would also apply to the order of the confirmation of sale made in execution proceedings. The plaintiffs ought to have raised the plea that the items being carpenter service inams were not liable to be sold. By confirming the sale, the Court must be deemed to have held that the property was alienable and that order would operate as res judicata. To put it differently, a decision of a Court, either actual or constructive on an issue that arises in a suit or in execution proceedings would operate as res judicata in subsequent proceedings between the same parties and, on the basis of that principle, the decree obtained against the plaintiffs in the mortgage suit as well as the order of sale made in execution proceedings would be binding on the plaintiffs in the present suit

I shall now consider the decisions cited at the bar. The earliest case is that of a Division Bench of the Madras High Court in Lakshmanaswami Naidu v. Rangamma, ILR 26 Mad 31 (b) There, the learned Judges held that the executing Court was competent to refuse to execute a compromise decree wherein the mirasi rights of the defendant. attached to the Devasthanam and his right to the emoluments to the office which were mortgaged to the plaintiffs were directed to be sold. The basis of the judgment is found in the following passage at p. 33 :

In the case of Nagappa v. Venkata Rao, ILR 24 Mad 265 (C), it was. pointed out that when a decree is based on an agreement of compromise and when there is nothing more on the part of the Court than a mere adoption of the contract, the Court must be taken to adopt the contract with all its incidents. Under S. 375 of the Civil Procedure Code, the Court had no jurisdiction to pass a decree on a compromise unless it was a ''lawful'' compromise.

Any terms of a contract which are opposed to public policy are invalid and will not be enforced by the Courts.

This decision, therefore, is not an authority for the position that the principles of res judicata would not be applicable to the decision of a Court expressly or constructively made on the question of inalienability of a particular property which was the subject-matter of a suit. As the decree was a compromise decree, the learned Judges, applying the law of contracts, held that the compromise was invalid. Further, in that case, the limits of the power of an executing Court to go behind the decree and the question of res judicata did not arise for consideration.

Raja of Vizianagaram v. Dantivada Ghelliah, ILR 28 Mad 84 (D), was also a case where the question of the validity of the decree directing sale of a carpenter service inam was raised in execution. The learned Judges held that the prohibition in S. 5 of the Madras Hereditary Village Offices Act (3 of 1895) against attachment and sale by the Courts was absolute and deprived Civil Courts or all jurisdiction to give directions for sale of inam lands granted as emoluments for the performance of duties connected with the offices referred to in that section and that, therefore a decree directing the sale of such lands was ultra vires. The reasons for the decision were expressed by the learned Judges at p. 86 thus:

But where the prohibition has some object of public policy in view, the rule is to enforce prohibition literally and strictly (compare Hard Castle on ''Interpretation of Statutes,'' third edn., pp. 392 and 397). There can be no doubt that S. 5 referred to has been framed on considerations of such a policy and in order to guard against the dissociation from the specified offices, to any extent whatever of the emoluments attached thereto, as that cannot But impair the efficiency of the services to be rendered by the officers and consequently affect injuriously the interests alike of the Government and of the section of the public concerned.

In these circumstances the prohibition in question, must be taken to be absolute and to deprive Civil Courts of all jurisdiction to give a direction for sale of such inam property as that in question. And the decree in so far as the direction for sale goes was altogether ultra vires and incompetent to confer the right intended and Courts are bound on the matter coming to their notice to abstain from enforcing the direction.

The learned Judges in that case were not considering the question of res judicata. An alienation of a carpenter service inam may be void. But. when a competent Court decides that a particular alienation is valid, when the same question arises between the same parties or their representatives in a subsequent suit, the finding operates as res judicata.

A Full Bench of the Madras High Court held in Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), that lands held on Swastivachakam service tenure are not subject to attachment in execution of a decree as the sale of such lands is opposed to public policy and the nature of the interest affected. In that case, the question of the inalienability of the said property arose in a claim petition filed by the holder when the property was attached in execution of a money decree obtained against him. The question of res judicata obviously did not arise in that case.

Another Division Bench of the Madras High Court in R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, held that, even if a decree had been passed, without objection, for the sale of an impartible estate the objection that the section prohibits the sale can be taken in execution. At p. 904 (of ILR Mad) : (at p. 914 of AIR), the grounds of the decisions are stated by Odgers, J., thus :

Therefore there seems to me to be a considerable body of opinion that, although a final decree may be passed without obiection or even by consent still the parties have no power by their act, nor indeed has the Court power, to evade the clear provisions of a statute if it is passed in the interests of public policy and not merely to benefit a particular class or individual.

Curgenven, J., at p. 908 (of ILR Mad) : (at pp. 915-916 of AIR), "said much to the same effect thus :

But there is a class of cases to which, I think, these considerations do not apply, namely, when execution of the decree would involve the infraction of a provision of law enacted in the public interest. The consideration that the parties may not have raised the point does not apply, because it may not have been in their interest to do so; and however far the doctrine that the executing Court should enforce the decree as it stands may be pushed, it cannot extend to an enforcement which involves breach of such a provision.

No question of res judicata arose in this case. This decision, if I may say so with respect, gives the executing Court the status of an appellate Court. If the conclusion arrived at by the learned Judges be correct, by the same parity of reasoning, the executing Court can come to a different conclusion on a finding of fact different from that arrived at by the original Court. If the original Court had held that the property in question was alienable, the executing Court on the same facts could come to a different conclusion and refuse to execute the decree. This would affect the finality and sanctity of decrees passed by competent Courts and will introduce unnecessary complications.

So too, another Division Bench of the Madras High Court held in Soora Ramakrishnamma Vs. Pasumarthi Venkata Subbiah and Others, , that inam lands burdened with dasabandam service are inalienable as being against public policy and cannot be sold in execution of a decree against the inamdar. The learned Judges further held that the inamdar could not be estopped from questioning the Court sale which he had allowed to be held without protest. The only question that was argued in that case was about the validity of the sale of inam lands burdened with dasabandam service. The advocate appearing for the appellant did not question the correctness of the finding on the question of estoppel and no question of res judicata was even raised. But a contrary view was taken by another Division Bench of the Madras High Court in Annamalai Chettiar v. Kumarappan Srirangachariar, ILR 1937 Mad 329 : (AIR 1937 Mad 134) (H). The learned Judges Bum and Lakshmana Rao, JJ., held that, where there was a final decree for sale of mortgaged property, it was not permissible for the executing Court to enquire into a plea raised by the judgment-debtor that the property was not liable to be sold on the ground that it is a temple service inam and, therefore, inalienable where the allegation of the judgment-debtor that the property was inalienable temple service was denied by the decree-holder. The argument advanced by the judgment-debtor in that case was stated by the learned Judges thus :

The learned advocate for the respondent contends that he is not asking that the executing Court should be considered to be empowered to question the validity of the decree, but that he is only asking that it should be held to have power to enquire into facts which, if proved, would take away its jurisdiction to order sale.

Adverting to that contention, the learned Judges observed :

With all respect, we think that there is here a slight begging of the question involved. The question which we have to decide is whether the execution Court has power to go into disputed questions of fact which, if proved, would take away its jurisdiction to order sale.

They distinguished the decisions in ILR 28 Mad 84 (D) and ILR 50 Mad 897; R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, , on the ground that in those cases the facts were not disputed.

Pandrang Rao and Abdur Rahman JJ. in Lakshmadu v. Ramudu, ILR 1940 Mad 123 (AIR 1939 Mad. 867) (I), also accepted the well-established legal position that the alienation of a dasabandam service inam was against public policy and was void. On that basis, they held that a mortgage of the dasabandam inam by the deed of 1915 and its sale in execution of the decree obtained on that deed were nullities. The question in that case came to be decided in a different suit. A mortgage of the dasabandam inam was executed by the plaintiffs'' father and the mortgagee filed a suit to enforce the mortgage and obtained a preliminary decree therein. Thereafter the mortgagor died and his sons, the plaintiffs were rought on record. When they tried to raise the question of the invalidity of the mortgage, they were not permitted to do so. In due course, a final decree was made and the properties were sold. Thereafter, they filed another suit for recovery of possession of those properties alleging that the mortgage, the decree and the subsequent sale were void and inoperative. When it was contended that the previous decrees were binding on the plaintiffs, the learned Judges negatived that contention on the following grounds :

They tried to raise the question regarding" the alienability of the property mortgaged and the binding nature of the debt but were not permitted to do so. This course was adopted by the Court on account of the provisions contained in O. XXII, R. 4(2), Civil Procedure Code. It may be that for certain purposes the suit might be deemed to have been pending and not disposed of until a final decree was passed but there is no doubt that the whole of the trial had come to an end, the points which the present plaintiffs wished to raise then could not have been gone into at that stage. Moreover the defences which they wished to raise were not such as to be called appropriate to their character as Appanna''s legal representatives. They could not have assailed the decree which had been passed against their father during his life-time. It would therefore follow that the decree cannot be held to be binding on them in their individual capacity in which the present suit was brought.

The aforesaid observations would have been unnecessary if the father himself could have raised the plea, that, notwithstanding the decree against him, the sale was void. This judgment, therefore, far from supporting the case of the mortgagor to some extent goes against his contention.

Another Division Bench of the Madras High Court in Ramachandra Suru v. Venkatalakshminarayana, 37 Mad LJ 65 : (AIR 1919 Mad 429) (J), held that the question of the validity of a preliminary decree for sale of an impartible estate could be raised in final decree proceedings despite the fact that the preliminary decree was made by consent. The raison deter of the conclusion is found in the following passage at p. 67 (of Mad LJ) : (at p. 430 of AIR):

The policy of the Impartible Estates Act is to preserve the property in the family of the zamindar and for that purpose it categorically prohibits all alienation by the zamindar for the time being except in certain circumstances...If he could not alienate the estate by mortgaging it or sailing it, he could not do so by any voluntary act having the same effect such as by confessing judgment... The razinamah decree here does not embody any decision of the Court but embodies a contract of the parties with reference to the subject-matter.

This judgment, therefore is only authority for the position that the mortgagor, though he agreed for the sale of the impartible estate at an earlier stage, is not estopped from raising the plea at a subsequent stage of the proceeding that the sale of the impartible estate was vold.

The scope of the doctrine of res judicata vis-a-vis the decision of a Court on the validity of an alienation contrary to a statutory prohibition is found in the decision of the Judicial Committee in AIR 1936 46 (Privy Council) . There, in a Prior suit, it was decided that S. 12-A of the Chota Nagpur Encumbered Estates Act, 1876, which rendered, void any transaction to which it was applicable, did not apply to a particular transaction. In a subsequent suit between the same parties, the decision was sought to be reopened. Their Lordships held that the previous decision operated as a bar under S. 11, Civil P. C. Adverting to a similar argument, the Judicial Committee observed at p. 127 (of Mad LJ) : (at pp.. 48-49 of AIR):

Truly the third sub-section 12-A renders void any transaction to which it is applicable, but the question as to whether it applies to a particular transaction entitles the Court to consider the construction of the section and the determination of its applicability rests with the Court. The decision of the Court in the Suit of 1917 determined that the Section had never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned Judge which allowed him not only to express a strong contrary view as to the applicability of the section which he was entitled to do if he so chose, but to try anew the issue as to its applicability in face of the express prohibition in S. 11 of the Code.

The prohibition against alienation in that case, as in the present cases, was based on public policy. Under S. 12-A of the Encumbered Estates Act, no alienation could be made without the previous sanction of the Commissioner. But still their Lordships did not engraft an exception to S. 11 on the ground that the alienation was void ab initio and, therefore, the decision thereon would not operate as res judicata. This decision, in my view, is the nearest approach to the point raised before us.

Vuppulury Somasundaram Vs. Bhimisetti Kondayya, , held that the order of the confirmation of sale of an unenfranchised inam would preclude the judgment-debtor from raising the question of alienability at a subsequent stage. At p. 407 (of Mad LJ) : (at p. 15 of AIR), Venkata Subba Rao, J., rejecting the contention of the judgment-debtor expressed himself thus:

It was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff''s suit should on that ground be dismissed. I cannot follow this contention. As I have said, we are not here concerned with the true facts of the case but only with the result of certain proceedings. Is the defendant to be permitted to plead that the land was inalienable at the time of the Court sale? The effect of the order confirming the sale is that the land can be alienated. The order is conclusive and it must be deemed that there is an adjudication that the property can be sold. In this view, it is unnecessary to consider ILR 28 Mad 84 (D) Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, ; Narahari Sahu v. Korithan Naidu, 1913 Mad WN 415 (N) and, other cases cited on this point.

The other learned Judge Madhavan Naif J. in a separate but concurring judgment stated the same legal position in different words. This judgment is, therefore, authority for the position that the order confirming the sale amounts to an adjudication on the question of alienability and on the principles of constructive res judicata the judgment-debtor could not reopen the same. If that be so in the case of an order in execution proceedings, it must be so a fortiori in the case of a decree for sale in a mortgage suit. This decision was followed by King J. in Venkatappadu v. Appalaswamy, 1940 2 Mad LJ 487 (O) and by Madhavan Nair J. in (Boggavarapu) Bullayya and Others Vs. (Garlapati) Subbayya and Another,

The Calcutta High Court in Dwarka-nath Pal v. Tanini Sankar Roy, ILR 34 Cal 199 (Q), applied the doctrine of constructive res judicata to a case where a non-transferable occupancy right was allowed to be sold and the sale was confirmed by the Court.

So too, the Patna High Court in Sham Sundar Singh Vs. Dhirendra Nath Chandra and Others, ), invoked the principle of constructive res judicata where the judgment-debtor did not raise the question of saleability at the time the; sale was confirmed. The learned Judges no doubt draw a distinction between a case where the non-saleability of the property was admitted and a case where it was not admitted. In the former case where the facts were admitted the Teamed Judges were inclined to hold that failure to raise the objection by the judgment-debtor could not create either estoppel or res judicata.

The Bombay High Court also allowed the plea of constructive res judicata to prevail in Chhaganlal Kishordas v. Bai Harkha, ILR 33 Bom 479 (S), where the question of the validity of an alienation made contrary to a statutory prohibition was not taken in an earlier proceeding. Rejecting an argument similar to that raised before us, Scott C.J. observed at page 482 :

It was however suggested by the pleader for the defendants that a plea of estoppel by res judicata cannot prevail where the result of giving effect to it will be to sanction what is illegal. This however is not the law. No such limitation is contained in S. 13 of the Code of 1882.. If the legality of an act is a point substantially in dispute, it may be a fair subject of compromise in Court like any other disputed matter and thus become res judicata. See Great North-west Central Railway v. Charlebois, 1899 AC 114 (T), similarly if it is abandoned or not put forward by a defendant it must, having regard to the provisions of S. 13, be deemed to have been decided against him.

It is not necessary in this case to attempt to evolve an acceptable principle circumscribing the limits of the jurisdiction of an executing Court to go behind the decree. The literature on that subject is vast and the ramifications are complicated.

The aforesaid discussion of case law discloses three currents of judicial opinion on three allied subjects. The first deals with properties, alienation whereof is prohibited on grounds of public policy, the second discusses the limits of the jurisdiction of an executing Court, to go behind the decree and the third applies the doctrine of res judicata to decisions of Court on the question of the validity of prohibited alienations. There is unanimity of opinion on the first, conflict on the second and a preponderance of authority on the third. It is true that, if an executing Court could go behind the decree and hold that an alienation was void, it would be incongruous to hold that the decision in that suit would be res judicata an another suit. I would prefer to adhere to the strict rule barring the executing Court going behind the decree rather than to stretch the rule to a breaking point to sustain principles of public policy. Both can co-exist without doing voilence to either.

A wrong decision, express or implied, directing a sate and thus taking a case out of the rule of prohibition based on public policy can be set aside or modified by appropriate procedure. It may be reviewed when there is an apparent error on the face of the decree. It may be rectified in an appeal or it may be set aside in collateral proceedings if obtained by fraud or collusion. If public service inams are sold, the Government if not a party to the decree could, intervene and resume the same.

The successor in office may, under certain circumstances, question the validity of the alienation when succession opens to him. A decree directing the sale of properties not saleable on the ground of public policy could not be equated to decrees against dead persons and lunatics. It is good till set aside in the manner known to law.

There is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public policy or statute may be void. But the said prohibition cannot have the effect of depriving the jurisdiction of Courts to decide in a particular suit whether the alienation is void or not.

Nor can it override the principles of res judicata. The former belongs to the domain of substantive law and the latter to the rule giving finality to decrees of competent Courts. The sanctity of final judgments is as much based on public policy as prohibition against the alienation of properties annexed to certain public offices. The fundamental question in each case, therefore, is whether the Court has inherent jurisdiction to entertain a particular suit.

A duty is cast upon a Court to raise relevant issues arising on the pleadings and give definite findings on each of the issues. The question whether a carpenter service inam is alienable raises a mixed question of fact and law which is certainly within the jurisdiction of the Court to decide. When it decides the question one way, the finding will be res judicata in another suit.

If the defence which ought to be raised is not raised, the Court must be deemed to have decided against the contention not raised. In the instant case, the validity of the mortgage on the ground of public policy was not raised in the earlier suit or in the execution proceedings, and therefore, the decree and the order confirming sale would operate as res judicata in the present suit.

The next question is whether S. 47 is a bar to the maintainability of the suit, Strong reliance is placed by the learned Counsel for the respondent on the judgment of a Full Bench of the Madras High Court in Muttaluru Veeraraghavayya Vs. Chundi Venkataraghavareddi, There, an unenfranchised service inam was sold in execution of a decree and the sale was confirmed.

The land was inalienable under the provisions of S. 5 of the Madras Hereditary Village Offices Act (Act 3 of 1895). More than 30 days after the Confirmation of the sale, the judgment-debtor applied under S. 47, Civil P. C. seeking a declaration that the sale was void and to have it set aside.

The question raised was whether Art. 166 or Art. 181 of the Limitation Act was applicable to that application. The Full Bench held that the application was barred by limitation under Art. 166 of the Limitation Act. The only question raised before the Full Bench was of limitation. All the parties as well as the Court assumed that the question raised was within the scope of S. 47, Civil P. C.

In execution of a money decree, the inalienable service inam was sold and purchased by the decree-holder. The judgment-debtor filed an application seeking inter alia a declaration, that the sale was void and to have it set aside. The dispute was between the parties to the suit and related to the execution of the decree and therefore, the provisions of S. 47 were attracted. But, in the present case, the decree itself directed the sale of the service inam and the judgment-debtor seeks to question the validity of the decree itself. The question raised, therefore, does not relate to the execution of the decree but to the validity of the decree itself.

That apart the authority of the Full Bench is considerably shaken by the subsequent judgment of the Supreme Court in Merla Ramanna Vs. Nallaparaju and Others, , wherein their Lordships held 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 Art. 181.

Under S. 47, all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The invoke this section the question raised shall relate to the execution, discharge or satisfaction of the decree.

The question raised by the plaintiffs in the present case does not relate to the execution of the decree for they attached the decree itself on the ground that it was void. The correct principle in my view has been stated by Sulaiman, C.J. in Mahabir Singh Vs. Narain Tewari and Others where the learned Judge observed :

I am therefore clearly of opinion that where the question is either that a decree was passed against a dead person or was not passed against him at all and therefore it is a nullity, pyre and simple, the dispute does not relate to the execution of the decree but aims at its utter destruction. The dispute as to the execution of a decree contemplates the existence of a valid decree. Where a decree is without jurisdiction or is otherwise utterly null and void, and can therefore be ignored by a person, his protest is not merely as to its execution but he impeaches the decree itself. Such a dispute, in my opinion is not within the purview of S. 47 at all.

We respectfully accept the above statement as laying down the correct law on the subject. If so, the question now raised is not one relating to execution within the meaning of S. 47, C.P.C.

In the result, I answer both the questions in the negative.

Satyanarayana Raju, J.

I agree

Ansari, J.

I agree