: On this expression of the Full Bench opinion, viz., that an executing court cannot investigate that the property which has been sold is an inalienable service inam when there is no foundation for it either in the plaint or in the written statement or issues or judgment in the mortgage suit, this Civil Miscellaneous appeal has got to be dismissed and is hereby dismissed.
(39) The learned Advocate, Mr. Champakesa Aiyangar, pressed on me on the other hand that he is in possession of respectable evidence part of which he placed before the executing court and a partition deed, which he produced today and which naturally I am not prepared to look into, to show that the property in question is an alienable service inam and that it was contrary to the public policy to sell and this would enable him to file a separate suit, and that a little time therefore should be given to him to file such a suit, and that till then the executing court may stay its hands and not deliver possession. The result is prima facie reasonable but this is a matter which might be considered by the executing court and I cannot fetter that discretion either way. That an executing court has power to stay its hands for adequate reasons cannot be gainsaid. But whether in the circumstances of this case, it should exercise such a discretion is a matter for the executing court to decide.
(40) The learned advocate, Mr. Ramamurthi, urges that he has got several grounds to show that such a separate suit cannot be filed and secondly that the relief asked for cannot be granted in such a separate suit. But that is not a matter for me to decide. I make no pronouncement either regarding the tenability of the suit or its limitation. This is a matter entirely for the court in which the suit is filed to decide.
(41) The net result is that beyond drawing the attention of the executing court that if it is satisfied that a little time should be given before delivery of possession is made, it would not be beyond its province or powers to grant the same. I do not wish to say anything more. But whether such a discretion should be exercised and on what terms I once again make it clear is entirely a matter for that court to decide.
(42) In the circumstances each party will bear its own costs.
(43) Case remanded.