R V RANGA AYYAR Vs. SUNDARARAJA AYYANGAR

JUDGEMENT

(1.) The appellant is the assignee of a mortgage decree against certain property passed on 20 September 1924. Defendants 1 and 2 filed written statements, but they were subsequently declared ex parte. The assignment to the appellant was recognized, but when he went to take out execution defendant 2 raised objections that the land in question was service inam and not alienable. The executing Court, the District Munsif's Court of Srivilliputtur, wrote a very short judgment as follows: The inam title deed Ex. 2 is proof positive that the inam in question is an enfranchised one. So items 2 to 5 are liable to be sold.

(2.) It is abundantly clear both from this judgment and from that of the lower appellate Court that the assignee decree-holder contested as a question of fact that this was an enfranchised inam and on the facts the executing Court found in his favour. In the lower appellate Court the learned District Judge held that the executing Court misconstrued the inam title-deed when it construed it as an enfranchised inam. He clearly puts before himself the question he has to decide in para. 4: The first question to decide is whether the inam is an unenfranchised one and could not be sold.

(3.) Then in para. 10 he says that it is argued that even assuming that the inam had been unenfranchised, the inam may have been that of the melwaram only and not of the land itself. The learned District Judge concludes on the strength of the inam register as regards this that the lands themselves were inam. Before him a very serious objection was taken that it was not open to the executing Court to go into this question at all or to question the decree as there was no apparent want of jurisdiction on the face of it. This objection the learned District Judge overruled. But it seems to me to be absolutely sound. The cases relied upon by him and also for the respondent before me are clearly distinguishable. Rajah of Vizianagaram v. Dantivada Chelliah (1905) 28 Mad 84 was cited. There it is stated: Though the record prior to and inclusive of the decree makes no allusion to the fact, yet in the subsequent proceedings the land is admitted to be service inam being the emoluments attached to the office of village carpenter which is among the offices comprised in the Madras Hereditary Village Offices Act (Act 3 of 1895).