T.V.A.K.T. Annamalai Chettiar vs T.T.K.K. Kumarappan Sriranga Chariar

Burn, J.—There is only one point for decision in these appeals and that may be stated as follows: When there is a final decree for sale of

mortgaged property, is it permissible for the executing Court to enquire into a plea raised by the judgment-debtor that the property is not liable to

be sold on the ground that it is a temple service inam and therefore inalienable? The allegation of the judgment-debtor that the roperty is inalienable

temple service inam is denied by the decree-holder. The learned Advocate for the respondent is not able to cite any authority for the proposition

that the executing Court in such a case has jurisdiction to enquire into the question of fact whether the land is inalienable or not. Mr. Rajah Aiyar

for the Appellant in L.P. A. No. 35 of 1935 has brought to our notice a decision of Mr. Justice Pakenham Walsh in Ranga Aiyar v. Sundararaja

Aiyangar (1933) 37 L.W. 358, which is exactly in his favour. The learned Advocate for the respondent relies upon 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, ; Mr. Justice Pakenham Walsh dealt with Maharajah of Vizianagram being minor, by Collector and

guardian H.F.A. Gilman, Esq. Vs. Chelliah, , but it does not appear that R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs.

Rao Muni Venkatadri Rao Garu, was cited before him. The distinction as it appears to us between those two cases and the present case and

between those two cases and the case decided by Mr. Justice Pakenham Walsh is that in Maharajah of Vizianagram being minor, by Collector and

guardian H.F.A. Gilman, Esq. Vs. Chelliah, , ii was admitted that the land was service inam being the emoluments attacked to the office of village

carpenter. If so, the land was inalienable by reason of Section 5 of the Madras Hereditary Village Officers Act (III of 1895). In the case of R.D.K.

Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, , there was no dispute about the fact that the

land sought to be sold was part of an impartible estate which was inalienable by reason of Section 6 of the Madras Impartible Estates Act (II of

1904). In the present case, there is no provision of statute law forbidding this alienation, but the learned Advocate for the respondent brought to

our notice the decision in Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), That however is distinguishable from this case, because that was

a case in which a village service inam was attached and sought to be sold in execution of a decree for money. Mr. Justice Pakenham Walsh has

pointed out that in the case before him, which is precisely similar to the case before us, there is a decree explicitly for the sale of the mortgaged

property. The decree on the face of it discloses no want of jurisdiction. There is nothing in the proceedings from which the executing Court can

simply take notice that the land is in alienable, and in such a case, as Mr. Justice Pakenham Walsh observes, it is very undesirable to lay down that

the executing Court should go behind the decree. The learned Judge observes at page 360:

The question therefore in this case is very simple and it is whether, when there is no want of jurisdiction apparent on the face of the decree, the

party in execution can raise a disputed point of fact, which, if his contention is true, would have deprived the Court of its jurisdiction to pass a

decree in that matter. I am quite clear that there is no authority quoted to this effect and the doctrine would obviously have most disastrous

consequences.

We are fully in agreement with this reasoning which appears to us to be decisive. The learned Advocate for the respondent has brought to our

notice that there are many cases in which the Court executing a decree has been held to have power to enquire into the validity of the decree, for

example, cases in which it is alleged that a decree has been passed against a dead person. We are not disposed to extend the principle to any

cases outside the limits within which the principle has hitherto been confined. As the learned Officiating Chief Justice has observed in Krishnamurthi

v. Imperial Bank of India ILR (1936) 59 Mad. 642 :

Even the Judges who wished to concede to the executing Court power to go behind the decree have used language to indicate that that power

should be circumscribed and kept within the narrowest possible limits.

""It is against public policy and good-sense alike"", as Page, C.J., points out in S.A. Nathan v. S.R. Samson ILR (1931) 9 Rang. 480

That the Court charged with the execution of a decree should be allowed to question its validity.

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. Our learned brother Pandrang Rao J., has accepted this contention. Referring to 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, he says that:

If the executing Court has the power to decide whether execution should be allowed as directed in the decree, it follows that the executing Court in

order to decide this question whether execution should proceed or not has necessarily the power of taking such evidence as may be necessary to

decide it.

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

executing Court has power to go into disputed questions of fact which if proved would take away its jurisdiction to order sale. The only authority

of this Court which is exactly in point would answer this question in the negative. It is not necessary to criticise 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, . Those cases simply lay down that where there are indisputable or undisputed facts brought to the notice of the

Court which take away its jurisdiction to order sale, the Court, as Curgenven, J., observed in R.D.K. Venkatalingama Nayanim Bahadur Varu,

Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, has to stay its hand and refrain from execution. That is not at all, with due respect to our

learned brother, the same as saying that when there is a dispute with regard to the facts, the Court has power or is bound to enquire into the

dispute and to decide the question of fact. We think therefore that in this case the learned District Judge of Chittoor was right in holding that the

judgment-debtor was not entitled to raise this question in execution. It follows that the orders of our learned brother in C.M.S.A. Nos. 52 of 1933

and 103 of 1933 must be set aside and orders of the learned District Judge restored in both cases. The appellants will recover their costs from the

respondent in all the Courts.