Frederick William Gentle, C.J.
1. This civil revision petition has been referred to a Full Bench by Bell, J., in consequence of apparent conflict in the decisions relating to the sale in execution of unenfranchised inam land. The relevant facts can be stated shortly. The petitioner was the inamdar in respect of two acres of land, known as Vadla Kammara (carpenter and blacksmith) inam. The respondent obtained a money decree against the petitioner and, in execution of it, this property was attached on 21st March, 1942 ; notice was given to the petitioner, who appeared on 6th August, 1942 ; the property was sold at a Court auction held on 12th April, 1943, after several postponements of sale had been granted at the instance of the petitioner; the sale was duly confirmed by the Court on 29th June, 1943. Although he had full knowledge of the execution proceedings and appeared during their progress, the petitioner made no objection to the attachment and sale and he did not raise any contention regarding the peculiar character of the land or of the existence of any legal bar- to it being sold in execution. After the sale was confirmed by the Court, on 16th July, 1943, the petitioner filed an application under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure which is the application out of which this civil revision petition arises, the appellant sought inter alia a declaration that the sale was void and to have it set aside. Allegations that there was fraud committed by the respondent, which enables an application to be made under Order 21, Rule 90 of the Code, were not pursued and can be ignored. The application was instituted more than thirty days after, but within three years of, the sale.
2. The learned Principal District Munsiff of Nellore, before whom the application came for disposal, held that Section 5 of the Madras Hereditary Village Offices Act (III of 1895) applies to the petitioner's inam land and that it is inalienable; the respondent has not challenged the finding, and consequently the character of the land is not in dispute. It was held further that the petitioner's application 'was barred by limitation, Article 166 being the relevant Article; and, also, that since the petitioner was aware of the execution proceedings and raised no objection before confirmation by the Court of the sale of the land, he was prevented from doing so thereafter by the principle of constructive res judicata ; the application accordingly was dismissed. An appeal by the petitioner to the learned District Judge of Nellore was rejected.
3. The effect of Section 5 of the Madras Hereditary Village Offices Act is to prohibit the transfer, attachment or sale in execution of unenfranchised inam land. In Sannamma v. Radhabhayi (1917) 34 M.L.J. 17 : I.L.R. Mad. 418 the holder of land, falling within Section 5, purported to transfer it by way of mortgage and at pages 425 and 426 of the report, it was held that such alienation was void. In Khairajmal v. Dain (1904) L.R. 32 IndAp 23 : I.L.R. 32 Cal. 296 (P.C.) property belonging to persons who were not parties to the proceedings was sold by the Court; it was observed by their Lordships of the Judicial Committee, at page 312, that, as against such persons, the sale was a nullity and they could disregard it, and need not take proceedings to have it set aside.
4. After referring to those authorities, Mr. Umamaheswaram for the petitioner .contended that: whenever a sale is void, the transaction can be ignored by all parties concerned, none of whom is obliged to take any proceedings with regard to it; the sale of the petitioner's land does not require to be set aside ; if proceedings are taken, the sole relief which need be sought is a declaration that the transaction is void ; in these circumstances Article 181 and not Article 166 of the Limitation Act is applicable and the limitation period during which an application in that behalf can be made is within 3 years from the date of the sale ; here, there is not, or there is not in substance an application to set aside the sale and Article 166, with its limitation period of 30 days from the date of the sale during which an application has to be made, does not apply ; consequently, the petitioner's application was made within the statutory period.
5. In furtherance of the proposition that Article 181 and not Article 166, is the relevant article, reliance was placed upon a number of decisions to which reference can now conveniently be made. In Rajagopal Iyer v. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. Mad. 288 land was sold in execution without notice, as required by Order 21, Rule 22, having been given; it was held that the sale was void and an application to set it aside was governed by Article 181, not by Article 166 ; there the sale was void by reason of an irregularity in the proceedings. Similar decisions are found in Seshagiri Rao v. Srinivasa Rao (1919) 38 M.L.J.62 : I.L.R. Mad. 313. and Nirode Kali Ray Chowdhuri v. Harendra Nath Ray Chowdhuri I.L.R. (1938) Cal. 280 regarding sales in execution of lands belonging to persons who are not the judgment-debtors and for that reason, the sales were void. Ma We Gyan v. Mating Than Bye (1937) Rang. L.R. 164 is a decision by a single Judge in which property was attached under Order 21, Rule 32(1) of the Code of Civil Procedure, to enforce a decree for restitution of conjugal rights; by Sub-rule (3) attached property can be sold only when the attachment has remained in force for three months ; the Court ordered sale of attached property before the expiration of that period ; the judgment-debtor applied to set aside the sale and for the property to be returned to her ; it was observed, at page 128 of the report, that the Court had no jurisdiction to sell the property, since the attachment had not been in force for the period prescribed in Sub-rule (3) prior to the sale, and consequently it was void ; it was further observed that in those circumstances it was unnecessary to have the sale set aside and the judgment-debtor need have asked only for the property to be returned, the prayer to set aside the sale not being required, it did not affect the real nature of the application, and consequently Article 18 r was that which was applicable. In B. Narotham Das v. B. Bhagwan Das : AIR1934All314 property was sold by a Court which had not jurisdiction to do so since the sale should have been effected by the Collector ; the sale was therefore void and, following Rajagopala Iyer v. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. Mad. 288 it was held that in the circumstances an application to set aside the sale was governed by Article 181.
6. In each of the authorities, which have been quoted, the question did not arise whether the judgment-debtor had a saleable interest in the land sold. In all those cases, the sales were void, because of non-observance of the rules of the Code, or the land did not belong to the judgment-debtors or belonged to other persons, or there was no authority in the Court to conduct and effect the sale. In Nirode Kali Ray Chowdhuri v. Harendra Nath Ray Chowdhuri I.L.R. (1938) Cal. 280 the first defendant obtained a decree against the second defendant and, in execution of it, a tank was attached and sold which belonged to the plaintiffs who were not the judgment-debtors ; in the judgment of Nasim Ali J., reference is made, at page 283 of the report, to the second defendant having no interest in the tank ; that is, it was not his property and he was not the holder ; there, the question did not arise that whilst the judgment-debtor had some interest in the property sold in execution, he had no saleable interest in it. In the present instance the only ground upon which the validity of the sale can be, andis challenged, is that, whilst the judgment-debtor is the holder, the land is inalienable by reason of Section 5 of the Madras Hereditary Village Offices Act. It follows therefore that whilst he is the holder he has no-saleable interest in the land. Mr. Umamaheswaram conceded that if the purchaser made an application in respect of the sale he would have to do so under Order 21, Rule 91 of the Code which provides that,
The purchaser at any such sale in execution of a decree may apply to the Court to set aside-the sale on the ground that the judgment-debtor had no saleable interest in the property sold.
It may be, and for the purpose of the present consideration I will assume that, wherever a sale in execution is void, each person concerned, whether the judgment-debtor or a stranger or a decree-holder purchaser, can disregard it. When the-sale is void the transaction does not pass the ownership of the property to the purchaser. When, as in the present case, a person is the holder of land in respect of which there is a statutory prohibition against it being transferred or attached or sold in execution, that person has no saleable interest in the property. If such, property is purported to be sold in execution, the sale does not confer a title to it upon the purchaser nor divest the holder of the property and the sale is void. The transaction can be disregarded by the purchaser of the property ; but Order 21, Rule 91, however, expressly gives him a right to apply to the Court to have the-sale set aside. Learned counsel for the petitioner conceded that if the respondent (purchaser) sought to obtain an order of Court to set aside the sale of the inam land concerned in the present matter, he would have to make an application in that behalf under Rule 91. It is beyond doubt, and it was not argued to the contrary that Article 166 applies to such an application, and it would have to be made within 30 days of the sale.
7. The presence of Rule 91 in the Code .reflects an intention by the Legislature that, in the case of a sale in execution of land in which the holder has no saleable interest, an application can be made to set it aside, irrespective of any other step which need or need not be taken. The rule, to my mind, accomplishes two objects: (a) it enables a stranger-purchaser who, not being a party to the suit in which the decree was passed, cannot utilise Section 47 of the Code, so as to have a summary remedy, instead of a proceeding by way of a suit; and (b) manifests an intention that in a sale in execution of property in which the judgment-debtor has no saleable interest an application can be made to set it aside. A decree-holder who purchases property of the judgment-debtor in execution is in the same position, qua the sale, as a stranger-purchaser and the machinery of Rule 91 is available to both, although the decree-holder, being a party to the suit, has the provisions of Section 47 open to him. The judgment-debtor and the purchaser, whether the decree-holder or a stranger, are parties who are concerned in the sale in execution of the judgment-debtor's property in which he has no saleable interest. Whilst Rule 91, in its terms, applies only to the purchaser, the reason for this is that, in its absence, a stranger-purchaser would have no summary remedy. The principle of the rule cannot have application only to one of the persons concerned in, or affected by, the sale. The principle of the competency of an application being made to set aside a sale. of property in which the judgment-debtor has no saleable interest being contemplated by Rule 91, such application can be made by a judgment-debtor under Section 47. The incidents attending such an application must be the same, no matter by whom it is made. A purchaser, whether a stranger to the suit or a decree-holder, has not the same opportunity as the judgment-debtor, whose property is sold, of knowing the character and nature of the property and whether the judgment-debtor has or has not a saleable interest in it; that knowledge is within the ken, and in many, if not most, instances, within the sole ken of the judgment-debtor. It cannot have been the intention of the Legislature, and it is not in consonance with justice, equity and uniformity of practice that, in respect of a transaction, the innocent or ignorant party should be placed at a disadvantage to the guilty party, or at any rate, to the party having full knowledge of the whole circumstances so that the former must take proceedings with reference to the transaction within a shorter period than that which is available to the latter. Since the purchaser must make his application within 30 days of the sale in execution to have it set aside, when the judgment-debtor has no saleable interest in the property sold, it follows that so also must the judgment-debtor in an application made by him in that behalf. The necessity for the judgment-debtor to proceed under Section 47 and not under Rule 91 does not give him an advantage over the purchaser in regard to the period within which his application should be instituted.
8. In the present case, the petitioner sought a declaration that the sale was void on the ground that the property is subject to Section 5 of the Madras Hereditary Village Offices Act and the application also asked for the sale to be set-aside on the same ground. Considerable argument was directed to the point that, being void, the sale could be disregarded, and that it is unnecessary for an application to be made either for a declaration that it is void or to have it set aside.
9. It was urged that, following the decisions to which reference has been made, previously, the application is subject to Article 181 and therefore can be made within 3 years of the sale. As already pointed out, none of these decisions relate to sale of land in which the judgment-debtor has no saleable interest and in which the effect of Rule 91 was not considered. The petitioner, however, has not followed the course, which it was stated he could have adopted, but instead he has made and pursued an application to set aside the sale. Whether it was necessary or not or whether the relief sought might have been confined to a declaration that the sale is void, to my mind, is immaterial; what has to be considered is whether the application which the petitioner made in the District Munsiff's Court is or is not barred by limitation. The application, although made under Section 47 is one to which the principles of Rule 91 apply as also do the incidents attached to such an application. In an application made by a purchaser in similar circumstances, the limitation period would be thirty days from the date of sale, Article 166 being the relevant article. Since the same incidents apply to the petitioner's application as would have been involved in an application by the purchaser, it must be subject to those incidents.
10. For the reasons given, Article 166 applies to the petitioner's application and not Article 181. Since the application was instituted after the expiration of thirty days from the sale of this property, the application cannot be entertained and must fail.
11. The above conclusion is sufficient to dispose of this civil prevision petition. Able and lengthy arguments were addressed by Mr. Umamaheswaram and Mr. G.V. Dhikshitalu, learned counsel for the respondent, upon the question whether the principle of constructive res judicata can be invoked in an application of the nature of the one under consideration. In the light of the conclusion that it is barred by limitation, there is no necessity to discuss and consider those arguments.
12. In my opinion, this civil revision petition should be dismissed with costs.
Patanjali Sastri, J.
13. I agree. Whatever may be the position in regard to execution sales vitiated by other defects or irregularities, Order 21, Rule 91 indicates that the Legislature regarded a sale of immoveable property in which the judgment-debtor had no 'saleable interest' as one which, as between the parties to it, cannot, after confirmation, be simply ignored as a nullity but requires to be formally set aside by the Court before it can be effectually got rid of. This is evidently based on the principle that a judicial sale carries with it no warranty of title and must stand as between the parties to it Muthukumaraswami Pillai v. Muthuswami Thevan (1926) 52 M.L.J. 148 : I.L.R. Mad. 639. Jagannadharao v. Basavqyya : AIR1927Mad835 . Surendra Kumar Singh v. Srichand Nahata I.L.R.(1935) Pat. 308 subject to any special remedy having statutory sanction, though as between the purchaser and a stranger who may turn out to be the real owner of the property sold, the sale may be 'void 'in the sense that it passed no title and can be ignored as a 'nullity' Kedarnath Goenka v. Ram Narainlal . If this distinction is kept in view, most of the decisions cited by Mr. Umamaheswaram can be readily distinguished from the present case.
14. Whichever party to a Court sale seeks to get rid of it on the ground that the judgment-debtor had no saleable interest in the property sold, must, therefore, have it set aside and as the petitioner being the judgment-debtor could not apply for such relief under Rule 91 which in terms does not cover his case, his application must be regarded as falling under Section 47, but is nevertheless covered by Article 166 of the Limitation Act and hence barred by time.
15. It was, however, urged that the Court could have no jurisdiction to sell property which is made inalienable by statute on grounds of public policy, and the execution sale can, therefore, be ignored as a nullity even as between the parties without any setting aside by the Court. This distinction receives no support from Rule 91 the terms of which are wide enough to cover cases where the judgment-debtor has no interest in the property sold as well as those where he has an interest which is unsaleable by prohibition of law. As pointed out in Muthukumamswami Pillai v. Muthuswami Thevan (1926) 52 M.L.J. 148 : I.L.R. Mad.639 the Court has on a 'common sense interpretation' of Section 51(b) of the Code pf Civil Procedure, ' authority and jurisdiction to attach and sell in execution any property which the decree-holder puts forward as the property of his judgment-debtor, for attachment and sale. Otherwise, the learned Judges proceeded to say.
it would mean that a Court in selling property in execution gives a guarantee that the property sold is the property of the judgment-debtor which is opposed to one of the fundamental principles of Court sale
There is no obvious reason why this reasoning should not apply to the case of a prohibited sale. So long as the Court is not made aware of the true position, there can be no lack of jurisdiction in the latter case than in the former, and the sale must, in my opinion, stand in either case as between the parties to it until it is set aside by the Court.
17. I agree with the learned Chief Justice and would only add a few words.
18. The question that finally emerged from the arguments in the case is a very narrow one.
19. Assuming that the property sold in execution is unenfranchised village service inam coming within the prohibition against attachment and sale contained in Section 5 of the Madras Hereditary Village Offices Act (III of 1895) is a petition by the judgment-debtor praying for an order ' declaring that the sale is void,, ultra vires, and without jurisdiction and setting aside the same ' governed by Article 166 or Article 181 of the Indian Limitation Act?
20. While on the one hand the prayer that the sale should be set aside may not attract Article 166 if the judgment-debtor need not, in law, ask for such setting aside, the judgment-debtor cannot, on the other, get round Article 166 by asking for a declaration that the sale is void if it is one which has to be set aside within the meaning of that article.
21. It is obvious that Article 181 will not apply if Article 166 does and in order to decide as to what cases come under Article 166 it is permissible to refer to the provisions of the Code of Civil Procedure, the two statutes being in pari materiel. see Chandra Mani Saha. v. Anarjan Bibi (1934) 67 M.L.J. 79 : L.R. 61 IndAp 348 : I.L.R. 61 Cal. 945 (P.C.) .
22. When asked whether an application by the auction purchaser in respect of the present sale would not come under Order 21, Rule 91 of the Code of Civil Procedure, Mr. Umamaheswaram fairly and, in my opinion, rightly conceded that it would. Whether a judgment-debtor has no interest at all in the property sold or has an interest in it, which is not saleable by reason of a statutory prohibition, he has, in either case, ' no saleable interest in the property sold ' in the language of the above rule.
23. An auction purchaser, whether a decree-holder auction purchaser, or a stranger auction purchaser has, in view of Order 21, Rule 91 of the Code of Civil Procedure, to ' apply to the Court to set aside ' such a sale. It is illogical to hold that the same sale. When assailed by the judgment-debtor assumes a different character so that it need not be set aside and a mere declaration can be sought that it is void.
24. Order 21, Rule 91 of the Code of Civil Procedure does not provide for an application by a judgment-debtor but while that necessitates a resort by him to Section 47 of the Code of Civil Procedure, the nature of the sale and the relief to be sought in respect of it cannot, by reason of that circumstance, be different.
25. The conclusion, therefore, seems to me to be inescapable that a judgment-debtor must, in circumstances like the present, apply to set aside the sale and that his application though it has to be and is laid under Section 47 of the Code of Civil Procedure, is governed by Article 166 of the Indian Limitation Act.