LexMERLA RAMANNA versus NALLAPARAJU AND OTHERS.
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1955 Matajog Dobey v. H. C. B/UJri Chandrast/chara Ai1ar ]. 1955 938 SUPREME COURT REPORTS [1955J plaint took the view that there was no use in pro- ceeding against him alone, as the main attack was directed against the Income-Tax Officials. No such grievance was urged, before the High Court and it is. not raised in the grounds for special leave. We hold that the orders of the High Court are cor- rect and dismiss these two appeals. MERLA RAMANNA fl. NALLAPARAJU AND OTHERS. [BHAGWATI, VENKATARAMA AYYAR and B. P. SINHA JJ.1 Court, Pou1er of-Suit to set aside sale held in excessive execution· of the decree-Afaintainability-Plaint, if may be treated as an execu- tion application-Lin1itation-lnherent jurisdiction of court to whose jurisdiction the subject-matter of the decree is transferred-Failure to raise objection at the earliest stage-Waiver-Code of Civil Proce- dure (Act V of 1908), s. 47-lndian Limitation Act (IX of 1908), Art;. 165, 166, 181. The appellant \Vas the assignee of a mortgage dated 14-12-1911~ cxec.itcd by A, \.vhich con1prised lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19-7-1909. 1"he app..:llant instituted a suit in the court of the Sub- ordinate Judge of l(akina<la, for the recovery of the arpount due on the mortgage, dated 14-l~-1911, and prayed for sale of the hypotheca. 1"he respondents were impfcaded as defendants but did not appear. The s1_1!t \Vas <lccreed ex parte, an<l in execution of the decree, the propcrtie'> of th~ respondents, 1nortgage<l to A on 19-7-1909, were brought t0 saie, an<l pun.:haseJ !:y the decree-hol<ler. The respon- dents then instituted the present suit in the District Court of East (~odavari \vhich then had jurisdiction O\'Lr the properties in suit, for a declar~uion that the decree obtained by the appellant \Vas fraud- ulent and inupcrative and could not affect their title. The plaint was later on a1nended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their sb~re. The trial Judge dis1nisscd the suit and the District Court in appeal affirn1ed his decision. Before the High Court in second appeal it \Va.s contendL·:l for the first time that the decree in question did not di~ect a sale of the mortgaged properties but a sale of the mort- gagee's rights under the mortgage deed dated 19~7-1909 and as such the sale of the properties v.'a::; void. The High Court having called for a finding from the District Court as to what was sold, it was 2S.C.R. SUPREME COURT REPORTS 939 found by that Court that the decree had really directed a sale of the mortgagee's rights and not of the properties mortgaged and that there was excessive execution. It was, however, of opinion that the point should have been taken before the executing court and .the suit in so far a:; it claimed relief on the basis of excessive execution was barred under s. 4 7 of the Code of Civil Procedure. The High Court declined to entertain the objection that the suit was barred under s. 47 as it had not been taken in the written statement and was raised for the first time in second appeal, and decreed the respondent's suit. It was contended for the appellant that the High Court should have entertained the objection and held that the suit was so barred. Held, that the appellant should be permitted to raise the con- tention. The point relating to excessive execution had never been specifically raised except before the High Court and the allegations in the plaint were vague and obscure. It is a pure question of law which requires no further investigation of facts and was understood and debated as such by the parties before the District Court. That it was well settled that the question whether an execution sale was in excess of the decree and. therefore, not warranted by it could be raised as between the parties only by an application under s. 47 of the Code before the executing court and not by a separate suit. f. Marret v. Md. K. Shira.zi & Sons (A.LR. 1930 P. C. 86), Venknt.?chalapathy Ai yen v. Perumal Ai yen ( [ 1912] M.W.N. 44 ), Biru Mahata v. Shyama Charan Khawas ( f18951 I.LR. 22 Cal. 483), Abdul Karim v. Islamunnissa Bibi (f19161 I.LR. 38 All. 339) and Lakshminarayan v. Laduram ( [ 1931 J A.LR. 1932 Born. 96), approved. That the court, however, had the power to treat the plaint in the suit as a
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