MUTTALURU VEERARAGHAVAYYA Vs. CHUNDI VENKATARAGHAVAREDDI

JUDGEMENT

(1.) THIS civil revision petition has been referred to a Full Bench by Bell, J., in consequence of apparent conflict in the decisions relating to the sale in execution of unenfranchised inam land. The relevant facts can be stated shortly. The petitioner was the inamdar in respect of two acres of land, known as Vadla Kammara (carpenter and blacksmith) inam. The respondent obtained a money decree against the petitioner and, in execution of it, this property was attached on 21st March, 1942 ; notice was given to the petitioner, who appeared on 6th August, 1942 ; the property was sold at a Court auction held on 12th April, 1943, after several postponements of sale had been granted at the instance of the petitioner; the sale was duly confirmed by the Court on 29th June, 1943. Although he had full knowledge of the execution proceedings and appeared during their progress, the petitioner made no objection to the attachment and sale and he did not raise any contention regarding the peculiar character of the land or of the existence of any legal bar - to it being sold in execution. After the sale was confirmed by the Court, on 16th July, 1943, the petitioner filed an application under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure which is the application out of which this civil revision petition arises, the appellant sought inter alia a declaration that the sale was void and to have it set aside. Allegations that there was fraud committed by the respondent, which enables an application to be made under Order 21, Rule 90 of the Code, were not pursued and can be ignored. The application was instituted more than thirty days after, but within three years of, the sale.

(2.) THE learned Principal District Munsiff of Nellore, before whom the application came for disposal, held that Section 5 of the Madras Hereditary Village Offices Act (III of 1895) applies to the petitioner's inam land and that it is inalienable; the respondent has not challenged the finding, and consequently the character of the land is not in dispute. It was held further that the petitioner's application "was barred by limitation, Article 166 being the relevant Article; and, also, that since the petitioner was aware of the execution proceedings and raised no objection before confirmation by the Court of the sale of the land, he was prevented from doing so thereafter by the principle of constructive res judicata ; the application accordingly was dismissed. An appeal by the petitioner to the learned District Judge of Nellore was rejected.

(3.) AFTER referring to those authorities, Mr. Umamaheswaram for the petitioner •contended that: whenever a sale is void, the transaction can be ignored by all parties concerned, none of whom is obliged to take any proceedings with regard to it; the sale of the petitioner's land does not require to be set aside ; if proceedings are taken, the sole relief which need be sought is a declaration that the transaction is void ; in these circumstances Article 181 and not Article 166 of the Limitation Act is applicable and the limitation period during which an application in that behalf can be made is within 3 years from the date of the sale ; here, there is not, or there is not in substance an application to set aside the sale and Article 166, with its limitation period of 30 days from the date of the sale during which an application has to be made, does not apply ; consequently, the petitioner's application was made within the statutory period.