1. The short point that arises tor decision in the Second Appeal is whether the application filed by the 9th defendant to set aside the court sale of item 3 is barred by limitation or not.
2. There is no doubt that the decree, in pursuance of which execution was taken, provided that item 3 should be sold in the last instance. But actually, the item 3 has been sold first.
3. The court sale was on 23-7-1124. The 9th defendant filed on 26-3-1952 the present application for setting aside the sale under Order XXI rule 90 and Sections 47 and 151 of the C. P. C. on the ground that the sale was contrary to the directions contained in the decree and as such, void and also on other grounds. The application was opposed by the court-auction-purchaser on the ground that it is barred by limitation. It will be noted that the application for setting aside the sale was filed nearly three years alter the sale.
4. According to the 9th defendant, the sale of item 3 being void, no question of limitation arises at all. On the other hand, the auction-purchaser contended that the sale will at the most be only a voidable one and as such will be governed by the provisions of Article 166 of the Limitation Act and that, the application is barred by the law of limitation.
5. The learned District Munsiff, Kottara-kkara, held that the sale so held of item 3 was against the provisions of the decree and invalid. In consequence, he held that said sale is void and as such, no question of limitation arises at all for consideration and in the result he allowed the application.
6. On appeal by the auction-purchaser, the learned Additional District Judge differed from the learned District Munsiff and held that the sale was not void and may be at the most voidable. He held that the application of the 9th defendant was barred by limitation and as such, dismissed the same.
7. In Second Appeal before me, the learned counsel for the appellants, Mr. Achutha Varrier contends that the view taken by the learned District Judge is not correct. On the other hand, Mr. Velayudhan Nair, learned Counsel for the respondent has contended that the sale is pot void and as such, the application filed for setting aside the sale was barred by limitation.
8. Mr. Achutha Varrier has referred me to certain decisions of the various High Courts which deal with the powers of the executing court. But most of these cases only lay down the very well established proposition that an executing court cannot go behind the decree. In same cases, it has been held that a sale in contravention of the provisions in the decree will be considered to be one without jurisdiction. But in all those cases ultimately, the courts have held that it will be a good ground for setting aside the sale. These decisions will not, as such, help the contentions of the learned counsel and as such, I am not referring to them.
9. But a few decisions relied upon by Mr. Achutha Varrier may be noted. He relied in particular on the decisions of the Patna High Court reported in Mehdatunnissa v. Sewak Bam, AIR 1933 Pat 161 (A) and Bhan Kumar v Lachmi Kanta, AIR 1941 Pat 566 CB) and also to the decision of a single Judge of the Madras High Court in Murugappa v. Chengalvaraya, AIR 1944. Mad 465 (C).
10. In AIR 1933 Pat 161 (A), a Division Bench of that High Court held that when once the court passing the mortgage decree, has definitely laid down the order in which the mortgaged properties are to be sold, the executing court cannot ignore the original decree and proceed to sell the properties in a different Order in spite of the objections of decree-holder as well as some of the judgment-debtors. I ao not think that there can be any quarrel with the Principle stated by the learned Judges. There was no question of limitation arising for decision before the learned Judges and these observations are made by them while disposing of an appeal against an order made by the lower court there in contravention of the provisions of the decree. In AIR 1941 Pat 566 (B) there is, no doubt, an observation by the learned Judges Dhavle and Meredith JJ. at p, 568.
'It is no doubt settled that where a sale is wholly without jurisdiction and consequently void as opposed to voidable, an application by the judgment-debtor to have it declared void will lie undet Section 47. In such a case, it is clear that no actual setting aside of the sale is really necessary. The question is however whether a similar applica-tion will lie where the sale is merely voidable, and not wholly void; where the sale, for example, is vitiated by an irregularity but was not wholly without jurisdiction, and whether, if it be held that the execution court could not sell the tenure in this case, the sale was void or voidable.''
11. It will be seen that the question that the learned Judges had to consider in the above case was regarding the power of the executing court to sell the tenure in that case. Ultimately, the learned Judges held that the tenure could be sold. Therefore, this decision also will not help Mr. Achutha Varrier. In fact, one of the learned Judges in that case Mr. Justice Dhavle has considered some instances of void and voidable sales.
12. The decision in AIR 1944 Mad 465 (C) by Mr. Justice Kuppuswami Ayyar is certainly in favour of the contentions of Mr. Achutha Varrier. In that case, though the decree directed the sale of a particular item last, the executing court directed that item to be sold first and such a sale was held. The learned Judge held that the sale of that item by the executing court was ultra vires. The learned Judge observed at page 467 as follows:
'But then in this case the execution court had no jurisdiction to vary the terms of the decree and pass an order on the basis of which variation the order so passed must be considered to be one without jurisdiction and can have no legal effect. I therefore find that the sale of door no. 24 was ultra vires and is not binding on the plaintiff and has to be ignored.'
Though this judgment is directly in point and in favour of the contentions of Mr. Achutha Varrier, with great respect, I am unable to follow that said decision. In fact. there is a Division Bench decision of the Madras High Court comprising of Mr. Justice Waller and Mr. Justice Madhavan Nair in Ammakutti Achi v. Doraiswami Aiyar, AIR 1928 Mad 140 (D) which has taken a contrary view. This decision will be dealt with by me later in this judgment. Evidently, this decision was not brought to the notice of Mr. Justice Kuppuswami Aiyar. The decision of the Full Bench of the Allahabad High Court reported in Gobardhan v. Dau Dayal, AIR 1932 All 273 (FB) (E) and referred to by the learned counsel does not also give any assistance in this matter. That decision only lays down that an execution court has no power to alter or vary the decree under execution and substitute a new decree for the same.
13. Lastly, Mr. Achutha Varrier relied upon the decision of the Supreme Court reported in V. Ramaswami v. Kailasa Thevar, AIR 1951 S. C. 189 (F). Their Lordships at page 192 observe:
'The learned Judges appears to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.'
Their Lordships are only reiterating the well, established proposition that an execution court cannot go behind the decree and I am not able to see how these observations of their Lordships can assist Mr. Achutha Varrier in his contentions.
14. On the other hand, Mr. Velayudhan Nair, has relied upon the decision of the Madras High Court in AIR 1928 Mad 140 (D) referred to above and also to the decision of a Division Bench of the Travancore-Cochin High Court comprising of Mr. Justice Sankaran and Mr. Justice Kumara Pillai, reported in Marie Fernandez v. Madhavi, 1955 Ker LT 46: (AIR 1955 Trav-Co 92) (G). In AIR 1928 Mad 140 (D), the question arose under Article 166 of the Limitation Act. In that case, the mortgage decree had directed the sale of items 1 to 3 therein to be sold last and item 4 to be sold first. But actually, items 1 to 3 were sold first and an application was filed to set aside the sale under Section 47 and Section 151 C. P. C. on the ground that it took place contrary to the directions in the decree. That application was held to be barred by limitation under Article 166 of the Limitation Act, as it had been filed admittedly more than 30 days after the date of sale.
15. It was argued before the learned Judges that the sale in contravention of the directions in the decree amounts to an illegality and that, therefore it is void ab initio and that the proper article applicable is Article 181 of the Limitation Act which prescribes a period of 3 years and not Article 166. The learned Judges following a previous judgment of Mr. Justice Oldfield, held that an application to set aside such a sale is governed by Article 166 of the Limitation Act. This is a direct decision on the applicability of Article 166 and unfortunately, this decision has not been brought to the notice of the learned Judge Mr. Justice Ku-ppuswami Iyer when he decided the matter in 1944.
16. In 1955 Ker LT 46: (AIR 1955 Trav-Co 92) (G), Sankaran and Kumara Pillai, JJ. had to consider the effect of a sale held contrary to the order mentioned in the decree. The decision of Waller and Madhavan Nair, JJ. referred to above and also the decision of Mr. Justice Kuppuswami Aiyar were all cited before the learned Judges. The learned Judges have referred with approval to the decision of Waller and Madhavan Nair, JJ. The learned Judges have expressed dissent from the view taken by Mr. Justice Kuppuswami Aiyar. The learned Judges observe as follows at page 54 (of Ker LT) : (at P. 97 of AIR) :--
'It cannot be said that in putting the different items to auction in a wrong order the executing court is modifying or varying the terms of the decree. At best it could be said that in conducting the sale in such a manner a serious irregularity has been committed. The party prejudiced by such sale would be entitled to have the sale avoided. In other words, it would only be a voidable sale and not a void sale. Since the decree authorises the executing court to realise the decree amount by the sale of all the items, the executing court will be well within its jurisdiction in selling all or any of those items. Even if such a sale happens to be in an order different from that specified in the decree, it cannot be said that the executing court is acting without jurisdiction.'
Reference may also be made to a Division Bench judgment of the Calcutta High Court reported in Manasaram Paria v. Raja Nagendra Nath Sahu Roy 16 Ind Cas 235(H) of Sir Ashu-tosh Mookerjee and Beachcroft, JJ. Under similar circumstances, the learned Judges observe at page 236:
'Consequently, the sale must be treated as held, if not without jurisdiction, at any rate, with material irregularity in the exercise of the jurisdiction of the court'.
The three decisions referred to above deal with the identical point and the ratio decidendi of those decisions is that a sale under such circumstances is not a void one but only a voidable sale. If it is only a voidable sale, it follows that Article 166 of the Limitation Act applies and as such, the application filed by the 9th defendant 1st barred by limitation.
17. In the result, the Second Appeal failsand is dismissed with costs throughout. Leaveto appeal granted.