1. The appellant is the assignee of a mortgage decree against certain property passed on 20th September 1924. Defendants 1 and 2 filed written statements, but they were subsequently declared ex parte. The assignment to the appellant was recognized, but when he went to take out execution defendant 2 raised objections that the land in question was service inam and not alienable. The executing Court, the District Munsif's Court of Srivilliputtur, wrote a very short judgment as follows:
The inam title deed Ex. 2 is proof positive that the inam in question is an enfranchised one. So items 2 to 5 are liable to be sold.
2. It is abundantly clear both from this judgment and from that of the lower appellate Court that the assignee decree-holder contested as a question of fact that this was an enfranchised inam and on the facts the executing Court found in his favour. In the lower appellate Court the learned District Judge held that the executing Court misconstrued the inam title-deed when it construed it as an enfranchised inam. He clearly puts before himself the question he has to decide in para. 4:
The first question to decide is whether the inam is an unenfranchised one and could not be sold.
3. Then in para. 10 he says that it is argued that even assuming that the inam had been unenfranchised, the inam may have been that of the melwaram only and not of the land itself. The learned District Judge concludes on the strength of the inam register as regards this that the lands themselves were inam. Before him a very serious objection was taken that it was not open to the executing Court to go into this question at all or to question the decree as there was no apparent want of jurisdiction on the face of it. This objection the learned District Judge overruled. But it seems to me to be absolutely sound. The cases relied upon by him and also for the respondent before me are clearly distinguishable. Rajah of Vizianagaram v. Dantivada Chelliah (1905) 28 Mad 84 was cited. There it is stated:
Though the record prior to and inclusive of the decree makes no allusion to the fact, yet in the subsequent proceedings the land is admitted to be service inam being the emoluments attached to the office of village carpenter which is among the offices comprised in the Madras Hereditary Village Offices Act (Act 3 of 1895).
4. I need not go into the question here whether when there is such a decree which in its from does not disclose any want of jurisdiction but when the property to be proceeded against is admittedly inalienable the executing Court can go into the question and decide whether the Court which passed the decree had no jurisdiction. Anjaneyalu v. Sri Venugopala Rice Mill Ltd. AIR 1922 Mad 197 is also a case where there was no dispute about the fact that the properties sought to be sold by the Court was the property whose alienation was forbidden as opposed to public policy. In Katwari v. Sita Ram Tiwari AIR 1921 All 118 there was also no question that the land sought to be alienated was land which could not be alienated under specific enactments on the ground of public policy. The question therefore in this case is very simple, and it is whether when there is no want of jurisdiction apparent on the face of the decree the party in execution can raise a disputed point of fact which if his contention is true would have deprived the Court of its jurisdiction to pass a decree in that matter.
5. I am quite clear that there is no authority quoted to this effect and the doctrine would obviously have most disastrous consequences; for instance in a suit for rent in raiyati lands in an estate tried by a revenue Court without objection and where a decree passed therein becomes final it is clearly not open in execution proceedings for the judgment-debtor to urge that after all the lands are not raiyati lands but kamatom lands and that therefore the trying Court had no jurisdiction, and it would be clearly most improper for the executing Court to embark in execution on an investigation into a disputed matter of fact of this sort. The point of fact in this case was, so far, from having been admitted, that the executing Court came to one conclusion and found that the land was an enfranchised inam whereas the lower appellate Court came to the opposite conclusion. I consider that neither Court had any jurisdiction to go into this disputed question of fact at all and as there was no want of jurisdiction apparent on the face of the decree they were bound to execute it. It is not necessary therefore to discuss the other points raised by the appellant since I consider that the appeal must be allowed with costs here and in the Court below. The order of the District Munsif will be restored.