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 suit 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 24-3-1947.
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 themeaning of Section 47, and, as such the present suit isbarred. The further contention of the defence is thatanother remedy also was available to the plaintiffto 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. TheHigh 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:
''Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers. In the present case that property was 6 annas subject to an existing mortgage. The effect of the certificate of sale granted by the order of the Subordinate Judge is to make the sale that of a property not attached, namely, the 6 unincumbered annas -- a property which could not be sold in such proceedings inasmuch as it was not the property attached.'
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'Here we find an existing property accuratelydescribed in the schedule, and the order of the Subordinate Judge grants a sale certificate which statesthat another and a different property has been purchased at the judicial sale. It was beyond the powersof the Court to make such an order, inasmuch as therewas no power to sell in these judicial proceedings theproperty thus certified to have been purchased.'
The only difference in the present case, so far as the facts are concerned, is that the properties in the present suit were not the subject-matter of the mortgage decree, whereas the property which was sought to be released from the sale was not the subject-matter of attachment in the case before their Lordships of the Privy Council.
4. Mr. B.N. Das, appearing on behalf of the appellants, has however, placed reliance upon Umapati Mukherjee v. Sheik Soleman AIR 1927 Cal 614 (B). Their Lordships held that suit of that nature was barred by the provisions of Section 47, Civil P. C. The land in respect of which the suit was brought for declaration of title and recovery of possession was in fact included within the mortgage decree. But the contention was that this was not included in the mortgage bond itself.
Manifestly there was no question of jurisdiction of the executing Court to execute the decree in respect of the properties, the subject-matter of the subsequent suit. They having been included within the decree the executing Court had absolute authority to put them in execution and the sale ensued. Their Lordships therefore held that this matter whether the properties sold in excess of the mortgage bond itself even though contained in the decree was a question under Section 47, Civil P. C. It is to be noted that this position was not challenged before their Lordships and conceded by the learned advocate appearing for the respondent. Their Lordships also did not give any reason for their finding that Section 47 is a bar excepting by relying on the authority of Rambhadra Naidu v. Kadiriyasami Naick'er AIR 1922 PC 252: 48 Ind App 155 (C).
We have closely followed the above Privy Council decision. There also the properties which were the subject-matter of the subsequent suit were contained in the mortgage decree itself and as such were automatically contained in the sale certificate. It was challenged on behalf of the plaintiff in the subsequent suit that the sale certificate on a proper construction really did not contain the properties which were not in the mortgage bond itself. It is manifestly clear on a perusal of their Lordships' judgment that the question before their Lordships was more or less a question of construction of the sale certificate. Their Lordships observed:
'It is in their Lordships' opinion impossible to construe this sale certificate as limiting in any way the extent of the pannai lands to which it referred'.
Again in another part their Lordships observed:
'Their Lordships would agree with this conclusion if they placed the same construction on the sale certificate as that accepted by the learned Judges of the High Court, but this they are unable to do. The sale certificate was in their opinion, plain, and its meaning was accepted by all parties at the time, showing that even if they misunderstood the operation of the mortgage they were under no misapprehension as to that of the certificate.
Certificates of sale arc documents of title which, ought not to be lightly regarded or loosely construed. There is full opportunity for challenge of all proceedings in the execution of mortgage decree at the time, and except in clear cases a purchaser ought not to be harassed in his possession by disputes arising years after his purchase.'
The present case, however, is therefore clearly distinguishable from the case before their Lordships of the Privy Council.
5. On behalf of the appellants reliance also has been placed on a decision of the Allahabad High Court reported in Rahim Bukhsh v. Kishen Lal AIR 1939 All 368 (D). There the Court passed a decree for sale of the mortgaged property. In the sale proclamation the mortgaged property was entered for sale, and the one-quarter share which belonged to Rahim Bukhsh personally and which he had inherited from his father was also wrongly entered for sale as part of the property mortgaged by Azim Uddin, the original mortgagor.
Their Lordships held that a subsequent suit for declaration of title and recovery of possession in respect of the property which was not the subject-matter of the mortgage decree but sold was barred under the provisions of Section 47, and Order 21, Rules 66 and 92, Civil P. C. In that case, their Lordships simply relied upon a previous Full Bench decision of the same Court reported in Seth Chand Mal v. Durga Dei, ILR 12 All 313 (E) where the judgment-debtor died after the passing of the decree and his legal representatives were brought on the record in the execution proceedings to represent him.
It was held that the questions, which they raised as to the property which they said did not belong to his assets in their hands and as such was not capable of being taken in execution, were questions coming under Section 244(c), Civil P. C. 1882, and must be determined in the execution department and by a separate suit. The Full Bench decision, in our opinion, is entirely different from the question before us arisingout of the peculiar facts cited by us above. In the case reported in AIR 1939 All 368 D) the question of jurisdiction of the executing Court was never touched, and as such, we are definitely of the view that this decision cannot assist us in deciding the present case.
6. Another Single Judge's decision reported in Baru v. Amir Singh AIR 1940 All 78 (F) also has been relied upon. There Thom, C. J., observed:
'The plaintiffs were parties to the execution proceedings. They could have challenged the sale upon the ground that the sale certificate included more property than the decree directed should be sold. When a sale of immovable property has not been challenged by the judgment-debtors a sale certificate is granted by the Court. At the date of the grant of certificate the sale becomes absolute.
It was contended for the plaintiffs in appeal that the suit was one for possession and not one to set aside a sale. In substance, however, the suit is one to avoid the sale so far as the property not covered by the mortgage is concerned. The sale certificate granted by the Court to the defendant is a formal document of title.'
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''It is not open now however to the plaintiff to maintain a suit to set aside the sale. The plaintiffs' right to challenge the sale expired when the sale was confirmed by the Court in favour of the defendant.'
We are not in agreement with these observations. If the sale contained property in excess of the mortgage decree, it is without jurisdiction, the sale need not be set aside and the suit must be taken to be one for possession on the fresh cause of action of disturbance of his possession. It is not a case of voidable sale but a sale which is a complete nullity from the inception as being without jurisdiction.
7. Mr. Das also relies upon another decision of the Patna High Court of Shearer, J., sitting singly reported in Gokhei Swain v. Chaitan Rout AIR 1944 Pat 347 (G) in support of his proposition. There it was purely a question of construing the mortgage decree whether a particular item of property was included within the mortgage decree on a proper construction. Shearer, J., held that such a question ought to be agitated under Section 47 and not in a separate suit.
8. For the proposition that in the present case the provisions of Order 21, Rule 92 can, by no stretch of imagination, be taken to be a bar, we may cite the authority of two decisions. In Bulaki Das v. Kesari AIR 1928 All 363 (H) their Lordships held that where a judgment-debtor brings a suit to recover possession of certain property, other than mortgaged property, wrongly included in the auction sale by the mortgagee in execution of his mortgage decree and purchased by the mortgagee himself, the relief claimed being not for setting aside the sale on the ground of fraud as contemplated under Order 21. Rule 90, the suit is not barred.
Their Lordships also held that in such cases the sale must be taken to be a sale in respect of properties not covered by mortgage decree and it is to be taken, as a complete nullity. Such is also the view in the decision of the case reported in Ram Ganu v. Habi Sambhu AIR 1950 Bom 346 (I).
9. We are, therefore, of the view that in the present case the sale in respect of the subject matter of the present suit is a complete nullity and withoutjurisdiction inasmuch as these properties were not in the mortgage decree itself.
It is the decree which gives power to the Executing Court to execute it. The position is well settled that when the sale is without jurisdiction, it may not serve as a cause of action for a suit or any proceeding and the party can take up the position of completely ignoring it as his rights are unaffected by such a sale. A question of this nature is not covered by the provisions of Section 47, Civil P. C. inasmuch as it is not a question of execution, satisfaction or discharge of the decree which is put to execution as the suit properties are completely extraneous to the decree itself and far beyond the powers of the Court to be put to sale.
The plaintiff has got the right to enjoy the properties till his possession is disturbed or he is dispossessed which alone is the cause of action compelling the plaintiff to bring a suit, Evidently the question is completely foreign to the provisions of Order 21, Rule 90, because the sale requires not to be set aside at all as it has no existence in law. We would observe, it is unfortunate we have not got the advantage of hearing the other side as he was not represented by a counsel before us.
10. The appeal therefore fails and is dismissed; but there will be no order as to costs as there is no appearance for the other side.
11. I agree.