KANGALI MAHARANA Vs. SHYAMSUNDAR MOHANTY

JUDGEMENT

(1.) THIS appeal has been filed by defendants 1 to 3 against the reversing judgment dated 11-12-1951 of Sri A. Guru, Additional District Judge of Cuttack, arising out of a sui]t for declaration of title and recovery of possession brought by plaintiff shyamsunder Mohanty. The plaintiff's version is that he and other members of his family (father of respondent No. 17, father of respondents 15 and 16 and father of respondent no. 14) and others executed a simple mortgage bond (Ext. 11) in respect of 4. 33 acres of land on 22-1-1912. The mortgage amount not having been paid, eventually a decree followed (Ext. 12 dated 25-11-25 ). In execution of the said mortgage decree, the mortgaged properties were sold on 14-3-1939 and the third party-auction-purchaser took delivery of possession through Court on 243-1947. The plaintiff's further version is that the disputed land of an area. 41, which is the subject-matter of the present suit, appertains to R. S. plot Nos. 19, 36, and 37 and this property was never mortgaged on the basis of the mortgage transaction ext. 11, nor was it included in the mortgage decree (Ext. 12); but nevertheless the sale proclamation (Ext. G) contained these plots and ultimately they were sold in execution of the mortgage decree. The plaintiff's main attack is that the sale is a nullity and the cause of action for the suit arose on the date when his possession was disturbed by the defendants on 14-9-1948, The suit was filed on 1-2-49.

(2.) THE main defence is that the present suit is barred under the provisions of section 47, and Order 21, Rule 92, Civil P. C. The defence taken in a nut-shell is to the effect that the plaintiff who was a judgment-debtor in the execution proceedings had had sufficient opportunities for raising an objection that these pro- parties were not included in the mortgage decree, and as such, they were to be excluded from the sale; and he haying failed to raise this objection the present suit is not maintainable. Moreover, this is a question regarding execution, satisfaction and discharge of the decree within the meaning of Section 47, and, as such the present suit is barred. The further contention of the defence is that another remedy also was available to the plaintiff to set aside the sale under the provisions of Order 21, Rule 90, and after the confirmation of the sale Order 21, Rule 92 is a bar.

(3.) THERE is no dispute over the position that in fact the properties, which are the subject-matter of the present suit, that is, Order 41 appertaining to R. S. plot Nos. 19, 36 and 37, were not included in the mortgage bond nor were they included in the decree on the basis of the simple mortgage bond. To us, it appears clear from this undisputed position that the Executing Court had no jurisdiction to sell the properties which were not covered by the decree itself. The position is too well settled and is indisputable that the Executing Court must execute the decree as it is and has no power to go behind the decree. He was certainly competent to put to sale, under the provisions of Order 34, the properties which were the subject-matter of the mortgage decree. It is to be noted that the decree was on the basis of a simple mortgage bond; bat the properties of the present suit which were not included in the decree itself could not be sold by the Executing Court, and we have no doubt in our mind to lay down the position that in I putting these properties to sale he acted without jurisdiction, and the sale, therefore is a nullity. When the sale, as we have found, is a nullity and without jurisdiction, the plaintiff, even though a judgment-debtor, is entitled to take up the position of completely ignoring that part of the sale which is without jurisdiction, and he is not bound by law to put forth his objections at the stage of execution. The real cause of action for bringing the present suit is the disturbance of his possession. He was not to avoid the sale or to pray for setting aside the sale. In our opinion, the subject matter of the present suit being without jurisdiction as being in excess of the powers of the Executing Court, the question cannot be taken to be one of execution as contemplated under Section 47, Civil P. C. To come to the finding that the safe is without jurisdiction, with respect, we rely upon some observations made by their Lordships of the Privy Council in the case of thakur Barmha v. Jiban Ram, reported in 41 Ind App 38 (A ). There the judgment-debtor owned a mahal of which a 10 annas share was mortgaged. Judgment-creditors obtained an attachment against, inter alia, a 6 annas share in the mahal, described in the schedule to the attachment and in the sale proclamation as being included in the mortgage. An auction having taken place, the auction-purchasers applied for and obtained a sale certificate describing the property bought by them as a 6 annas share of the mahal not included in the mortgage. The Subordinate Judge, who granted the certificate, found, upon the facts connected with the attachment and other attachments of the judgment-debtor's property, that the intention, as all parties knew, was to sell a 6 annas share not included in the mortgage and that that was in fact the property sold and bought. The High Court agreed with this finding and dismissed the appeal of the Judgment-debtor. It was held by their Lordships that the sale certificate should be set aside, the description of the property in the schedule to the attachment being conclusive as to what was the subject-matter of the sale. It will be pertinent to quote a few passages from the judgment of their Lordships appearing at p. 43 of the report: