1. This is a judgment-debtor's appeal under the following circumstances: One Abdul Jalil Khan, a zamindar of Aligarh, in the year 1909 or 1910, borrowed money from various people and several decrees for money were passed against him. The decrees were simple money decrees, and under the provisions of Schedule 3, Civil P. C, the property which was attached in execution of the decree being ancestral property, the execution proceedings were transferred to the Collector. Under the provisions of the law, the Collector on 29th August 1911, gave a lease to one Habiburrahman Khan of the properties of Abdul Jalil Khan for a period of seventeen years.
2. On 25th September 1914, while the property was in the possession of Habib urrahman Khan under the aforesaid lease, Abdul Jalil Khan executed a simple mortgage in favour of Rao Maharaj Singh (now represented by the Collector of Etah in charge of his estate) for a sum of Rs. 15,000. A suit for sale on foot of this mortgage was filed in the Court of the Subordinate Judge on 25th October 1920. This suit was decreed on 9th March 1921, i. e., a preliminary decree for sale was passed by the Court on that date and was made final on 29th July 1922. All the proceedings, viz., the preliminary decree and the final decree were passed ex parte after due notice having been served on Abdul Jalil Khan.
3. On 4th October 1923, Abdul Jalil Khan died and was succeeded by the appellant Maulvi Mohammad Khalilur Rahman Khan. On 2nd June 1925 an application for execution was filed by the decree-holder and it was sought by that application to bring the legal representatives of Abdul Jalil Khan on the record. On 14th July 1925 the pleader for the decree-holder stated that the decree-holder wanted first to bring the legal representatives of the judgement-debtor on to the record and then to proceed with the execution. Notices therefore were sent to the pro posed legal representatives. The notices were returned by the serving officer as unserved, but no steps having been taken to re-serve the judgment-debtor's heirs the application was struck off. A second application was filed on 8th July 1926 and notice of this application was duly served on 10th September 1926 on the appellant, but as steps were not taken for execution of the decree the application was struck off on 16th ' September 1926. On 1st July 1928 the lease of 29th August 1911, in favour of Habibur Rahman Khan, came to an end. The application for execution out of which the present appeal has arisen is dated 30th August 1928, and was presented to the Court on 8th September 1928. Objections were taken by the appellant Khalilur Rahman Khan and two points were raised by him. The first point was that the decree which was under execution was void and incapable of execution and the second point was that the application for execution was barred by time having been filed more than three years from the date of the decree, the two intervening applications not being applications according to law to take steps-in-aid of execution.
4. The learned Subordinate Judge having overruled these objections, the judgment-debtor has presented an appeal in this Court. The objections raised in the Court below are reiterated before us. It is contended by Mr. Iqbal Ahmad appearing on behalf of the appellant that inasmuch as the mortgage of the property in question having been made at a time when the property was held under a lease granted by the Collector was not saleable, was void, and under the provisions of para. 11 Schedule 3, Civil P. C the Court could not sell the property. Mr. Iqbal Ahmad has referred us to the case of Katwari v. Sitaram Tiwari A.I.R. 1921 All. 118, and on the analogy of that case he has submitted that be was entitled to object to the sale under the provisions of para. 11, Schedule 3, Civil P.C. We are of opinion that that case is clearly distinguishable as the wording of Section 20, Tenancy Act, prohibits any civil Court or revenue Court from selling an occupancy holding. That is not the case here. Under para. 11 it is provided that a civil Court shall not issue any process against such property or part thereof in execution of a decree for payment of money. 'Such property' in this paragraph means the judgment-debtor's property, over which the Collector, as in the present case, had power to deal with under the provisions of Schedule 3, Civil P.C.
5. It is argued by Mr. Iqbal Ahmad that the prohibition being against any process in a decree for the payment of money must include the present decree as all that the decree directs is the sale of the property for realization of money. In our opinion it is only in the case of a money decree (i. e. not a decree in which the Court has ordered the sale of any specific property) the sale is prohibited by the words referred to above.
6. It is no doubt true that para. 11 prohibits the transfer of any property by way of mortgage, but in our opinion the stage at which any person entitled to plead that the mortgage was void was in the suit. The defendant Abdul Jalil Khan could have raised the defence that the mortgage in the suit was void. The [defendant not having raised this plea, it is not in our opinion open to the judgment-debtor, after the passing of the decree, to raise this plea that no decree should have been passed against him. It is what the appellant now seeks to plead, but he cannot be permitted to do so. In our opinion the point is covered by authority: see the case of Ballabha Das v. Murat Narain Singh : AIR1926All432 . (We may mention that the head note is incorrect.) The learned Government Advocate has by way of an ' analogy referred us to a case where a defendant could have raised the point that a mortgage which was in suit had been imperfectly registered under the Registration Act and submits that if the defendant does not choose to raise that plea he could not in execution of the decree plead that the mortgage which was the basis of the claim was a void document not having been registered according to the law and that the position of the judgment-debtor in the present case is not different.
7. We are therefore of opinion that there is no force in the contention of the learned advocate for the appellant. As regards the point of limitation, we are of opinion that the finding of the learned Subordinate Judge is correct. In view of the ruling of this Court in the case of the Kayastha Co. Ltd. v. Sitaram : AIR1929All625 the objections raised by the judgment-debtor cannot be maintained now. The result therefore is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.