1. The defendants Nos. 1 to 3 in this suit were the usufructuary mortgagees of certain properties. The first defendant, who was entitled to one-third share of that right, mortgaged his right to one Ponnaiyen and Ponnaiyen mortgaged his right to the plaintiff.
2. The plaintiff brought a suit on his mortgage and made Ponnniyen and Ponnaiyen's mortgagor, the first defendants, as well as the second and third defendants, parties to the suit. Certain other persons, to whom it is unnecessary to refer, were also made parties, and a decree was passed in his favour. The construction of this decree is in question in this suit. The plaintiff contends that not only Ponnaiyen's mortgage-right but the 1st defendant's 1/3rd interest also in the property was directed to be sold by the decree. The defendants contend, on the other hand, that only Ponniyen's right was directed to be sold. After the decree, an order for sale was passed. It is not disputed that this order directed the rights both of Ponniyen and of the first defendant to be sold. Nor is it disputed that they were, as a matter of fact, brought to sale, and that the plaintiff obtained such delivery as a purchaser of one-third share is entitled to get according to the provisions of the Civil Procedure Code.
3. The present suit is instituted for partition of the one-third share of the first defendant and recovery of that share. The first defendant did not appear to contest the suit. His co-parceners, the defendants Nos. 2 and 3, contend that the plaintiff is not entitled to partition because the decree in the plaintiff's favour was really only for sale of Ponniyen's right. Exhibit III is the decree. It directed the mortgaged property to be sold in case of default. The mortgaged property is described as one-third share of Perumal Ayyer in certain land, and it is stated that Ponniyen's right was mortgaged to one Devendiayen for Rs. 75, and that it was subsequently mortgaged to the plaintiff.
4. The respondent's contention that it was only the mortgage-right of Ponniyen that was directed to be sold may net be without some foundation on the construction of this decree, the terms of which appear to be doubtful. But, as already stated, it is admitted that what was directed to be sold was the right both of Ponniyen, and Perumaliyen, the first defendant, and it was that right that was actually sold.
5. It is contended, that although the order for sale was passed after notice to the first defendant, it is not shown that the notice stated that the application was to bring Perumaliyen's right also to sale. Assuming that the onus was not on the defendants to show that the notice did not state that Perumaliyen's right could be brought to sale, the fact still remains that it was brought to sale. Section 244 of the repealed Civil Procedure Code, 1882, corresponding to Section 47 of the present Civil Procedure Code, 1908, lays down that 'all questions...relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.'
6. The question whether the sale was valid or invalid on the ground that it was not warranted by the decree is one relating to the execution of the decree. The defendants, who were parties to the plaintiff's suit, on his mortgage were, therefore, bound to take steps in execution to impeach the validity of the sale.
7. It has been repeatedly held that the question whether the actual execution of a decree is in excess of the decree itself one relating to execution. See Rani Kattamma Nachiar v. Bothagurusami Thevar 6 M.H.C.R. 293; Biru Mahata v. Shyama Charan Khawas 22 C.P 483; Harnam Chander v. Muhammad Yar Khan 27 A.P 485 : 2 A.L.J. 100 : (1905) A.W.N. 63. The defendants not having taken steps to set aside the sale, if they really had any grievance, the plaintiff is entitled to enforce the rights which he obtained under it.
8. The decrees of the lower Courts are set aside and the suit remanded to the Court of first instance for disposal on the other issues.
9. The costs of this Court and of the lower Appellate Court will abide the result.