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Cheria Chacko Vs. Kumaran Kesavan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberS.A. No. 217 of 1958
Judge
Reported inAIR1963Ker258
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 34, Rule 7; Constitution of India - Article 181; Limitation Act
AppellantCheria Chacko
RespondentKumaran Kesavan and ors.
Appellant Advocate T.S. Krishnamoorthy Iyer, Adv.
Respondent Advocate T.K. Narayana Pillai and; D. Narayanan Potti, Advs.
DispositionAppeal dismissed
Cases ReferredNirodekali Roy v. Harendra Nath
Excerpt:
.....section 47 as period of limitation under article 181 expired before date of suit - second appeal dismissed. - - a executed by one thommen cheria, the father of the plaintiff and 4th defendant in favour of the 2nd defendant, after setting aside a safe held in execution. we are perfectly in agreement with the submission of counsel when he argues that a void sale need not be set aside and that even without the sale being set wide, a suit for redemption will lie. now this is precisely what is prohibited by section 47 c. it is well settled that a judgment-debtor applying for setting aside the sale or for declaring it a nullity on grounds other than those mentioned in order 21, rule 90 of the code has to do it under section 47 and not by a separate suit (vide ramlal sahu v......the property was sold and was purchased by the 1st defendant and that at the time of the execution sale thommen cheria was dead. the exact date of the death of thommen cherts, was alleged in the plaint to be on 19-4-1113. the execution sale took place on 19-12-1113, and the sale was con-firmed on 18-1-1114. exhibit 11 is the sale certificate. after the sale the 1st defendant transferred the property to one koshi under ext. d. koshi in turn transferred that right to the 2nd defendant under ext. e. it is common ground that if thommen cheria died on 19-4-1113 and that if the legal representatives of thommen cheria were not impleaded to execution to represent the estate of thommen cheria that sale would not bind the estate of thommen cheria.2. the contentions of the defendants were that.....
Judgment:

1. This Second Appeal has been referred by a learned Single Judge to the Division Bench as he thought that there was some conflict in the rulings which may govern the decision of this case. The facts of the cast are briefly as follows: The suit was for redemption of a mortgage evidenced by Ext. A executed by one Thommen Cheria, the father of the plaintiff and 4th defendant in favour of the 2nd defendant, after setting aside a safe held in execution. The 1st defendant was the owner of the properties. He executed a kanom in respect of then properties in favour of four strangers. Thommen Cheria purchased the right from one of the kanomdars and mortgaged the same under Ext. A to the 2nd defendant for Rs. 1,000/-. The 1st defendant, Instituted a suit O. S. No. 4/1098 claiming michavaram in respect of these properties. Thommen Cheria was the 7th defendant in that suit. It was alleged by the plaintiff that in execution of the decree in O. S. No. 4/1098 the kanom right in the property was sold and was purchased by the 1st defendant and that at the time of the execution sale Thommen Cheria was dead. The exact date of the death of Thommen Cherts, was alleged in the plaint to be on 19-4-1113. The execution sale took place on 19-12-1113, and the sale was con-firmed on 18-1-1114.

Exhibit 11 is the sale certificate. After the sale the 1st defendant transferred the property to one Koshi under Ext. D. Koshi in turn transferred that right to the 2nd defendant under Ext. E. It is common ground that if Thommen Cheria died on 19-4-1113 and that if the legal representatives of Thommen Cheria were not impleaded to execution to represent the estate of Thommen Cheria that sale would not bind the estate of Thommen Cheria.

2. The contentions of the defendants were that there was no evidence to show that Thommen Cheria died on 19-4-1113, and that the plaintiff was not entitled to impeach the validity of the sale In this suit as that was a matter relating to execution, discharge or satisfaction of the decree on O. S. No. 4/1098. They also contended that the plaintiff and the 4th defendant were impleaded as legal representatives of Thommen Cheria on 1-3-1117 and it was after they were impleaded that the property was delivered over through Court. In any event they contended that the suit was not maintainable and prayed for the dismissal of the same.

3. The Trial Court came to the conclusion that Thom-men Cheria died on 19-4-1113, and that the sate was nota nullity, even though the beirs of Thommen Cheria werenot impleaded, but as the 2nd defendant was a trustee forthe plaintiff of the right purchased by him under Ext. E,the plaintiff was entitled to redeem the properties. Thelower Appellate Court, on appeal, held that there was noevidence to show that Thommen Cheria died on 19-4-1113,that the 2nd defendant was not a trustee of the plaintiffby virtue of his purchase under Ext. E, and that the plaintiff had no right to redeem. Therefore, that Court dismissed the suit, reversing the decree of the Trial Court. It isagainst this decree that this appeal has been filed by theplaintiff.

4. The main submission of learned counsel for the appellant was that Thommen Cheria died on 19-4-1113 and that as the legal representatives of Thommen Cheria were not impleaded before the Court sale that sale was a nullity. He also submitted that the finding of the lower Appellate Court that there was no evidence to show that Thommen Cheria died on 194-1113 is erroneous. In the view which we are going to take in this appeal it is not really necessary to decide the question when Thommen Cheria died. It is common ground that if Thommen Cheria died on 19-4-1113, then as held in Kanchamalai Pathar v. Ry, Shahaji Rajah Sahib, AIR 1936 Mad 205 (FB), the sale of his interest in the property was a nullity as no legal representatives were on record at the time of the sale. If that be to, counsel for the respondents contended that the present suit instituted even If treated as one for a declaration that the sale is void and for redemption of the property is barred under Section 47 of the Civil Procedure code.

5. We think that the contention is sound. If the execution sale was a nullity so far as Thommen Cheria was concerned, the plaintiff, as legal representative of Thommen Cheria should have prayed for a declaration to that effect in execution of O. S. No. 4/1098. A prayer for declaration that the execution sale Is null and void is really a question relating to execution, discharge or satisfaction of the decree in O. S. No. 4/1098, and therefore it ought to Dave 'been agitated in execution of that decree and not by a separate suit. Under Section 47 a party to a suit or his representative is so obliged.

6. A prayer for a declaration that a sale in execution is a nullity for want of representation of the estate of a Judgment-debtor is a prayer, which, if allowed will go to the root of the validity of an execution sale; and therefore, we think, that it is a matter which relates to the execution. Learned counsel for the appellant contended that If the sale is a nullity the plaintiff suing for redemption can ignore it. The prayer in the plaint was for setting aside the execution sale held in O. S. No. 4/1098, and for redemption. It is common knowledge that if, in law, a sale is void and therefore non est, the prayer to set aside the sale is a superfluity which a Court is entitled to ignore and to proceed as if it is a prayer for a declaration that the sale Is void.

We are perfectly in agreement with the submission of counsel when he argues that a void sale need not be set aside and that even without the sale being set wide, a suit for redemption will lie. It is because we agree with his submission on this point, that we do not refer to the several rulings cited by him. But the question really is whether it is necessary for the Court trying the suit for redemption to adjudicate upon the question of the validity or otherwise of the sale. If it is necessary for that court. In the first instance to abdicate upon the question whether the sale is void or not before passing upon the further relief of redemption claimed by the plaintiff, it stands to reason to hold that there must be either an express or implied adjudication on that question.

Plaintiff's contention is that it is open to the Court trying the suit for redemption to make the declaration that the sale of the equity of redemption is void and there-fore inoperative to convey any interest to the auction-purchaser and grant the relief of redemption. Now this is precisely what is prohibited by Section 47 C. P. C. The fact that the prayer is only for a declaration of nullity and not for setting aside a voidable sale, is no ground for holding that it is not a matter relating to execution, discharge or satisfaction of the decree. . We hold that in the final analysis all judgments are for declaration of pre-existing rights of parties.

'A judgment of a Court is an affirmation by the authorised societal agent, of the State speaking in the name of the law and the State, of the legal consequence attending, a proved or admitted state of facts. It is the determination or the sentence of law that a legal relation does or does hot exist. The power to render judgments, the to called 'Judicial power', is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law and to declare what the law is or has been ...... By so doing, It necessarily confers upon the successful party certain powers and privileges, its recording gives an official certification to a pre-existing legal relation (or establishes a new one on pre-existent grounds), and it affords authoritative protection and guaranty to be challenged, endangered or contested rights.'

(See Judicial Relief for, Peril and Insecurity by Edwin Borchard, 45 Harward Law Review, page 793 at pp. 797 and798).

'A Judgment has in general nothing whatever to dowith the means of enforcing the liability which it declares.Certain consequences do indeed flow from it, - as theright to issue execution, the attaching of a lien upon land, -but these are no part of the judgment, nor is it concernedwith directions for making its sanction effective. It is, asalready stated a bare assertion.' (See Black on JudgmentsVol. 1, page 4).

We think that a Court by its judgment certifies the fact that 'right existed theretofor, merely converting a right theretofor unenforceable into one now enforceable.' We emphasize this aspect as to the declaratory character of an order or a judgment just to repel the point raised by learned counsel for the appellant that if the sale is a nullity no application for declaration of its nullity is necessary in execution and that it is only when the prayer is to set aside a voidable sale that an adjudication by Court is required.

A prayer for a declaration that execution sale is a nullity is as much a relief sought in Court as a prayer for setting aside a voidable sale. The mere fact that in the latter case the Court is giving an affirmative relief is no reason why we should forget the essential character of the judicial function which the Court is performing in both cases. If the essence of that function consists in the declaration of pre-existint rights of the parties we see no reason for saying that in the case of a voidable sale it is a matter which relates to execution and therefore a suit is barred, but that in the case of a void sale a declaration of its void character is not a matter relating to execution and that even without such a declaration a suit for redemption can be instituted.

Therefore we come to the conclusion that the prayer for declaration that the execution sale is void is a matter relating to execution and a period of limitation is also provided for the same under Article 181 of the Limitation Act and if a party does not obtain the appropriate declaration from that Court, the Court trying a suit for redemption cannot entertain the plea that the execution sale was void, as that is what Section 47 prohibits. There is also mother angle from which the matter can he looked at. The void character of an execution sale may depend upon the adjudication of complicated questions of fact and law, as in this case, where it depends upon the date of the death if Thommen Cheria and the legal effect thereof. The assertion by a party that a sale is void is not determinative. The Court has to go into that question and find whether the sale is void so that a party may disregard it. We think that the forum designated by the Civil Procedure Code for adjudicating the question of the void character of en execution sale is the execution Court and not the Court which tries the subsequent wit.

The records in the execution import the verity of the sale which took place in execution of the decree. So long as those records stand, reason concurs with the policy underlying Section 47 (the Privy Council said that the policy underlying Section 47 is to check needless litigation: Chewdry Waded Ali v. Mst. Jumaee, 11 Beng LR 149 (PC)), in inducing us to hold that the matter must be adjudicated by the executing Court, and that the application for the same must be filed within the period prescribed by Article 181 and that a party or representative of a party to suit cannot evade the operation of Section 47 by not raising this question, which in essence and in substance appertains to the discharge or satisfaction of the decree.

7. This question has come up for consideration in some rulings of the Indian High Courts. In Rajagopala Aiyar v. Ramanujachariyar, AIR 1924 Mad 431 at p. 437 a Full Bench of the Madras High Court has held that the question whether an execution sale is void is a matter relating to the execution of the decree and therefore under Section 47 of the Civil Procedure Code, a separate suit for that purpose is barred. This is what Chief Justice Schwabe said at page 437:

'That is direct authority for the proposition that, in such a case (where a sale is found to be a nullity). It is not necessary to apply to the Court to set aside the sale. If it is possible for the petitioner in this case to proceed without applying to set aside the sale, he could avoid the harsh limitation imposed by Article 166. In my judgment, he can do so. He could, but for the provisions of Section 47 of the Civil Procedure Code of 1908, bring a suit for possession of the property sold, and the purchaser would not be able to rely upon the court-sale as a defence, because that sale is a nullity, and the Privy Council has held that it is not necessary to take any steps to set it aside. By reason of Section 47, all questions arising between parties to the suit relating to execution ought to be determined by the Court executing the decree, and not by a separate suit, and it has been held that the fact that a Court purchaser is a necessary party would not prevent the application of this rule.'

In Lakhu v. Radhabai, AIR 1952 Bom 438, this question was considered by Chainani, J., as he then was. The headnote correctly sets out the gist of the decision in the case.

'Assuming that the sale was a nuility, the question raised in suit was between the parties to the suit in which the decree was passed and therefore the suit was barred under Section 47.

Section 47 should be construed liberally. The words 'all questions arising' used in Section 47 do not mean only such question as are actually raised in the execution proceedings, for otherwise a party by not raising a question in execution proceedings, which then ought to have been raised, would be able to circumvent the provisions of Section 47, ...... The words 'all questions arising' mean all questions which could properly arise or which could properly have been raised in the execution proceedings between the parties to the suit or their representatives.'

At page 440 the learned Judge held as follows:

'We shall now discuss what the legal position would be, if the sale of the suit lands is regarded as a nullity, as has been contended by Mr. Virkar on behalf of the appellants-Plaintiffs, relying on the decision of Dixit, J., in Ram Ganu v. Hari Sambhu, 52 Bom LR 358 : (AIR 1950 Bom 346). Even then an application could have been made to the executing court to set aside the sale on the ground that the suit properties were not liable to be sold In execution of the mortgage decree and that the sale was, therefore void. Such an application falls under Section 47, Civil P. C.'

and the final conclusion expressed by him is as follows

'In our opinion, therefore, the present suit would be barred under Section 47, Civil P. C. Ef it is held that the sale of the suit lands was a nullity.'

8. The same view was taken in Bansi Sao v. Debi Prasad, AIR 1961 Pat 508 by Ramaswami, C. J., and Untwalia, J. at page 509 it is held:

'It is well settled that a judgment-debtor applying for setting aside the sale or for declaring it a nullity on grounds other than those mentioned in Order 21, Rule 90 of the Code has to do it under Section 47 and not by a separate suit (Vide Ramlal Sahu v. Mt. Ramia, AIR 1947 Pat 454 (F.B.) and Merla Ramanna v. Nallaparaju, AIR 1956 SC 87). This is so, irrespective of the question as to whether the sale is void or voidable'.

9. The Supreme Court had occasion to consider the question indirectly In AIR 1956 SC 87 at p. 92; after referring to Seshagiri Rao v. Sreenivasa Rat), AIR 1920 Mad 402, the learned Judge proceeded:

'. . . . the appellant was a party to the suit, but the decree had exonerated him from liability. In execution of the decree, his three-fourths share in the properties was sold on 26-1-1910 and purchased by the decree-holder and possession delivered to him on 16-124910. The appellant then filed a suit on 25-7-1911 to set aside the sale on the ground that it was in contravention of the decree and, therefore, void.

An objection having been taken by the defendant that the suit was barred under Section 47, the Court, while upholding the same, held that the plaint could be treated as an application under that section, if it was in time as an execution application, and the question arose for decision whether the application was governed by Article 166 or Article 181, Limitation Act, it was held that as the sale was a nullity, It had not to be set aside under the law, and, therefore, the Article applicable was Article 181 and not Article 166.

This statement of the law was approved by a Full Bench of the Madras High Court in AIR 1924 Mad 431 (FB).' This, In our view, supports the contention that a suit for setting aside a void sale will not lie and that that suit can be treated as an application for a declaration that the sale is void under Section 47 and that the relevant article of the Limitation Act applicable will be Article 181. Counsel for the appellant relied on the observations of Sinha, C. J., In Nani Bai v. Gita Bai, AIR 1958 SC 706 at p. 709. The exact passage on which emphasis was placed is as follows: 'The plaintiff Gundi's daughter, not being affected in any way by the sale aforesaid, it is not necessary for her to sue for setting aside the sale. She was entitled, as she has done, to ignore those execution proceedings and to proceed on the assumption, justified in law, that the sale had not affected her inheritance. The suit is, then fore, not barred by Article 12 of the Limitation Act.'

10. We think these observations are not controlling. The question there related to the applicability of Article 12 of the Limitation Act and no question of the bar of a suit under Section 47 was considered or discussed. Nor do we think that any assistance can be derived for appellant's argument, from the passage relied on from Nirodekali Roy v. Harendra Nath, AIR 1938 Cal 113, at p. 116. That passage is:

'Article 166, as my learned brother has pointed out, must be confined to cases where the sale is voidable only and not void and when the execution sale is a nullity, if a party files an application under Section 47 to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper Article would be Article 181 and not Article 166, Limitation Act.'

11. We hold that a suit for a declaration that the execution sale is void and for redemption on that basis, wilt not lie as the same raises a question which, relates to execution, discharge or satisfaction of the decree. As we hold that the suit Is barred on account of Section 47 of the Civil Procedure Code, and that the suit cannot be treated as an application under that section as the period of limitation under Article 181 expired before the date of the suit, no other question arises for decision in this appeal.

12. We therefore, confirm the decree of the lower appellate court though oh a different ground and dismiss the appeal. In the circumstances we make no order as to tests.


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