Meenakshi Ammal vs T.S. Chidambaram Chettiar (died) and Another

Yahya Ali, J.—This appeal is against the order of the Subordinate Judge of Madura in E.P. No. 33 of 1944, in O.S. No. 96 of 1926, on his

file. The application was for the sale of the share of the deceased first defendant in items 2, 3 and 5 of A schedule property in realisation of the

decree amount. This petition was dismissed chiefly on the grounds that the plaintiff''s application with regard to these items was barred u/s 48 of the

Code of Civil Procedure, that items 2, 3 and 5 are inalienable service inam land and their sales are opposed to public policy and that it was not

open to the executing Court to entertain an application for their sale in execution.

Mr. Ramaswami Aiyar argued before me that both these conclusions were wrong. It will be convenient to deal with the second point first. The

principle is undoubtedly well settled that an executing Court cannot go behind the decree and pass an order in execution which will have the effect

of nullifying the decree. To this general principle two-well known exceptions have been engrafted, namely, that the executing Court will stay its

hands where it is plain on the face of the record that the alienation is prohibited by statute or that it is opposed to public policy. In the present case

it is contended that items 2, 3 and 5 being unenfranchised service inam lands are inalienable and that their sale in execution should not be permitted

by the executing Court in pursuance of the principle mentioned above. The answer to this contention is that it is not apparent on the face of the

record that items 2, 3 and 5 are temple service inam lands. This does not seem to be correct. In the plaint itself the plaintiff who is the appellant

here contended that these items were unenfranchised service inam lands and that in consequence their alienation was opposed to law and custom

and the alienations of those items were void. In the judgment given in the suit, O.S. No. 96 of 1926, this contention has been set out in paragraph

It no doubt suited the appellant''s purpose in the execution petition to go back upon this admission and to seek the sale of those lands ; but it is

not even now pretended that these are not service inam lands and that they were granted personally as absolute estate. This is therefore a case

where on the face of the record, it does appear that items 2, 3 and 5 are unenfranchised temple service inam lands and as such by reason of the

decision of the Full Bench in Varankkot Illath Subramaniyam Nambudri, Karnavan and Manager of the Illom Vs. V.K. Vykunda Kammathi and

Others, and a number of other cases that have followed that decision, it must be held that the land is inalienable and its sale is opposed to public

policy. Reference was made to two decisions of this Court, one decided by a single Judge Pakenham Walsh, J., in Ranga Aiyar v. Sundararaja

Aiyangar (1933) 37 L.W. 358 and the other decided by a Division Bench in T.V.A.K.T. Annamalai Chettiar Vs. T.T.K.K. Kumarappan Sriranga

Chariar, . In Maharajah of Vizianagram being minor, by Collector and guardian H.F.A. Gilman, Esq. Vs. Chelliah, and R.D.K. Venkatalingama

Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, it has been held that where the nature of the property is known

and the property is inalienable, the executing Court must stay its hands. These decisions are referred to in the cases cited by Mr. Ramaswami

Aiyar, but in both those cases it must be noted that the nature of property itself was in dispute. In the case in Ranga Aiyar v. Sundararaja Aiyangar

(1933) 37 L.W. 358 the dispute as to the nature of the property was raised at the execution stage and evidence was gone into, the executing

Court reaching one conclusion and the appellate Court reaching a contrary conclusion. When the matter eventually came before this Court, it was

pointed out that it was obvious that the very nature of the property was in dispute and in such circumstances the executing Court could take upon

itself the function of deciding that issue, after a decree had been passed. That decision to my mind does not in any manner detract from the

principle laid down in Maharajah of Vizianagram being minor, by Collector and guardian H.F.A. Gilman, Esq. Vs. Chelliah, and R.D.K.

Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, that where it appears from the face of the

record, that the property in question is not alienable, the executing Court will not proceed to direct its sale. In the Division Bench case T.V.A.K.T.

Annamalai Chettiar Vs. T.T.K.K. Kumarappan Sriranga Chariar, , the facts are more or less the same as in Ranga Aiyar v. Sundararaja Aiyagnar

(1933) 37 L.W. 358 ; there also the nature of the property was not known and it was held that the executing Court could not go into that question.

In the present case, as I have already stated, the plaint as well as the judgment make it clear that items 2, 3 and 5 are properties whose alienations

are opposed to public policy and with that knowledge I am convinced that the executing Court was right in staying its hands and not directing the

sale of those properties in execution.

In view of this finding, it is not necessary for me to go elaborately into the first point that has been argued before me, namely, that Section 48 of

the CPC does not operate with regard to item 2. Here the decree was passed on 23rd November, 1928, and the execution application was filed

on 27th September, 1943, more than twelve years after the date of the decree. It is admitted that so far as items 3 and 5 are concerned, they are

barred u/s 48 except with regard to future maintenance. The only item with regard to which this question arises is the second item. That item was

subject to a lease which expired in 1939. The lease was in favour of the eighth defendant. The decree directed that the claim could be enforced

against that item only after the expiry of the said lease. The contention therefore with regard to the second item is that the enforceability of the

decree against that item arose only after 1939 and that the twelve years'' period is available from after that date. Even with regard to this item it is

plain that it cannot be sold in execution of the decree by reason of the finding that I have now come to on the footing that it is temple service inam

land. No doubt, it is open to the maintenance holder to enforce the decree against this item in any other way that may be open to her under the law

except by sale of the land. That right will be reserved to her subject to the respondent''s contention based on Article 182(5) of the Limitation Act.

The appeal is dismissed with costs.