1. This is an appeal under Section 47 of the Civil Procedure Code against an order made in appeal by the District Judge of Belgaum dismissing an execution application allowed by the Subordinate Judge of Chikodi.
2. The decree for Rs. 743-14-0 was made against the judgment-debtors in a suit to recover Rs. 700 due on a mortgage by she the of the mortgaged property, and was made on October 9, 1922. Tiff execution proceedings 1 were sent to the Collector to effect the sale of survey No. 175 of Bhivashi, after which the judgment-debtors put in an application contending that the property could not be brought to sale as it was mullanki, that is, held on a grant for the benefit of the Mulla and in consideration of his services to the village community.
3. The sanad has been produced, and one of its conditions is that the property should not be alienated. In the original Court it was contended that Sections 10 and 11 of the Watan Act applied, but though the grant calls it a watan, it is now conceded that it is not a watan under that Act, which relates to grants in consideration of services to Government: but one for service to the community, and this second class of grants does not fall within that Act. The contention was accordingly overruled by the learned Subordinate Judge on the authority of Purshottam Talvar v. Mudkangavda Shidangavda I.L.R (1883) 7 Bom. 420.
4. In appeal against this order, this view was not upheld, for the learned District Judge considered that the terms of the grant which did not include the right of transfer must prevail. He dismissed the execution application holding that the land could not be sold.
5. In this Court in addition to the terms of the grant, the Crown Grants Act has also been relied on for the contention that the land cannot be sold under the decree. But the argument here has taken another turn, and Mr. Adarkar's contention has been that, even on the finding that the land is inalienable, the learned District Judge's order is wrong, because both he and the Subordinate Judge were acting as executing Courts and had not the jurisdiction to hold that the decree could not be executed on such a ground, and were bound, so long as the decree stood, to carry out its directions. We think that Mr. Adarkar is right and that such was the case.
6. Mr. Adarkar has relied on:
Sadashiv Lalit v. Jayantibai I.L.R (1883) 8 Bom. 185, which lays down that the executing Court cannot go behind the decree, but must carry out its terms: Udwant Singh v. Tokhan Singh I.L.R (1901) Cal. 353 : 3 Bom. L.R. 318 a Privy Council case, which contains the doctrine that such an adjudication as occurred in this case, really amounts to a rehearing of the suit: and a third case, Lala Tripati Prakas Nandy v. Biseswar Lal Marwari (1931) 55 C.L.J. 114, wherein it was held that where there is a decree against specified property no objection in execution can be taken as to its sale-ability. 'The cases relating to vritti do not seem to us really to be relevant- Rajaram v. Ganesh I.L.R(1898) 23 Bom. 131, and Digambar v. Hari (1926) 29 bom. L.R. 102-but in a case dealing with Bhagdari land where a non-recognized share had been ordered to be sold, it was held by this Court that the estoppel of res judicata prevails even if its doing so effects what is prohibited by statute, Chhaganlal v. Bai Harkha I.L.R (1909) 33 Bom.479 : 11 Bom. L.R. 345. Other cases cited were-Tuka v. Ganu (1930) 32 Bom. L.R. 1398, Kalipad Sarkar v. Hari Mohan Dalal I.L.R (1916) Cal. 627 and Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R (1920) Mad. 675.
7. Mr. Adarkar has also urged that the matter here is also barred by the doctrine of res judicata. The final decree was made on October 6, 1923 : this darkhast was filed on March 20, 1929. On March 21, a notice under Order XXI, Rule 22, Civil Procedure Code, was ordered to issue, and on June 27,1929, the Court ordered the property to be sold, and the papers to be sent to the Collector, and after all that came the application, which has occasioned this appeal. He has relied on Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37 for the contention that such an order, as the one ordering a sale, is as binding on the parties as an interlocutory judgment, or a final one, and also on Raja of Ramnad v. Velusami Tevar , Gangadhar v. Sir Jagmohandas Varjivandas : (1931)33BOMLR781 , and Shamrao v. Malkarjun : (1931)33BOMLR797 .
8. This aspect of the learned District Judge's judgment we need not, however, consider now. It is clear that the first point must prevail, and that when once a decree is made against certain property, it no longer is possible in execution for the judgment-debtor to contend that the property decreed against cannot be so treated and executed against on several grounds, the first being that executing Courts cannot inquire into the legality of such a decree, for if they could, there would be no end to litigation, and they would, in fact, be acting as appellate Courts. It also is clear that matters which could and should have been agitated in the course of the suit cannot be allowed to be raised for the first time in execution.
9. We reverse the appellate Court's order and restore that of the Subordinate Judge. Appellants to get their costs of this appeal and of the first appeal from respondents who will pay their own.