2S.C.R.

SUPREME COURT REPORTS 919

Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants. and settll:'. their own terms with them. \Ne cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended. On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3 (b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in oceupation. We prefer to accept this contention, as it fully effectuates the intention of the legislature. In the result, we must hold that the one-sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3 (b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act. The petition of the respondent in so far as it relates to this inam must be dismissed.

This appeal is accordingly allowed, and in accordance wit~1 the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court. The parties will be:.ir their own costs in the court below.

ANANDA BEHERA AND ANOTHER

THE STATE OF ORISSA AND ANOTHER

[S. R. DAs, AcnNG C. J.,

VIVIAN BosE,

]AGAN-

NADHADAS,

JAFF.R IM.'\M and

CHANDRASEKHARA

AIYAR JJ.] Ft; ndamental Rights, Enforcement of-Oral sale of fishery rights for future years by owner of estate before it vested in the State by legislation-Nature of such rights-Profit a prendre, if immovable property requiring registered imtrument for transfer-Such sale, if creates any right to property-Non-recognition by the State, if transgresses any fundamental 1ights-Constitution of India, Arts. 19(1) (/), 31(1)-0rissa Estates Abolition Act, 1951 (Orissa Act I of 1952) -Transfer of Property Act (IV of 1882), s. 54.

Thi Stat• of Madras and

anothu

V. Srinivcstt

Ayyangar

Vmkatarama

Ayyar].

Octob., 2 7.

Ananda Behera and anathtr v.

The State of Orissa and another

The petitioners obtained oral licenses for catching and appropriating fish fron1 specified sections of the Chilka Lake from its proprietor, t!e ]aja of Parikud, on payn1ent of heavy sums and obtained receipts in accordance with the prevailing practice. This was before the passinz of the Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of Orissa.

The licenses, however, were in respect of years subscriuent to such vesting. The State of Orissa refused to recognise them and \Vas seeking to re~ au'.::tion the rights of fishery. The petitioners contended that it had thereby infringed or was abot to infringe their fu0damental rights under Arts. lY(l)(f) and 31(1) of the Constitution and claimed that the tronsactions being sales of future goods, namely, the fish, the Act which •vas confined to imtnovable property had no application.

Held, that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by the; n but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other i; vords, a profit a prendre \vhich is imn1ovable property \Vithin the meaning of the Transfer of Property Act read with s. 3(25) of the General Clauses Act.

Accordingly s. 54 of the former Act applies.

That as the sale of the profit a prendre in the present case was valued at n1ore than one hundred rupees and was effected without \vriting and registration it contravened s. 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners and consequently, they had no fundamental rights to enforce.

Fir1n Chhotabhai Jethahai Patel & Co. v. The State of Madhya Pradesh, ( [ 1953 J S.C.R. 476), distinguished and held inapplicable.

That it \ras not necessary in the present case to decide whether the contract \vas property \Vithin the 1l1eaning of Arts. 19(1)(£) and 31 ( 1 ), but assuming it to be so, the State has not taken such pro~ perty away from the petitioners or prevented them from acquiring, holding or disposing '-of it.

The State merely refuses to recognise the contract and refuses to consider itself bound by it.

That may give a cause of action for a suit on the contract but no fundamental right arises as the State has qot confiscated or acquired or taken possession of the contract as such by clai1ning any benefits under it.

ORIGINAL JuRISDICTION : Petition No. 286 of 1955.

Under Article 32 of the Constitution for the enforcement of Fundamental Rights.

H. Mahapatra and G. C. Mathur, for the peti- . tioners.

C K. Daphtary, Solicitor-General for India, (Porus A. Mehta and P. G. Gokhple, with him), for respondent No. L ·

1955.

October 27.

The Judgment of the Court was delivered hy BosE J.-This jurlgment will also govern Petitions Nos. 287, 288, 289 and 304 of 1955.

We will set out the facts in Petition No. 286 of 1955. The others follow the same pattern.

The dispute is about fishery rights in the Chilka lake which is situate in what was once the estate of the Raia of Parikud. This estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951

(Orissa Act I of 1952) on 24-9-1953 and has now ceased to exist in its original form.

The Act came into force on 9-2-1952.

The further facts are set out in paragraphs 2 and 3 of the petition in the following terms :

"That the petitioners carry on the business of i:atching and selling fish particularly from fisheries within the said lake.

That long before the vesting of the estate the petitioners had entered into contracts with the exproprietor and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule given in the accompanying affidavit and had obtained receipts on payment in accordance with the prevailing practice".

The lake is divided into sections and this petition is concerned with four of them. The licenses relating to them were purchased as follows :

1. On 30-7-50 for rights in Gerasar

Prawn for 1955-56

2. On 2-8-50 for rights in Jayamal

Prawn for 1955-56

3. On 18-9-51 for rights in Solakudi

Prawn for 1955-56

4. On 6-5-52 for rights m Jayamal

Chungudi for (1956-57 (1957-58 (1958-59 It will be seen that though the licenses were acquired before the estate vested in the State of Orissa they

Ananda Behera

and another v.

The Stale of Orissa

and another

A.nanda Behtra

tutd anothlr

The Stat• of Orissa ad another

Bost].

were for future years, all after the date of vesting.

The State of Orissa refused to recognise these licenses and were about to re-auction the rights when the petitioners filed the present petition seeking writs under article 32 on the ground that their fundamental rigius under articles 19(1)(f) and 31(1) were, or were about to be, infringed.

The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as articles 19(1) (f) and 31(1) are dependent on that.

In their petition the petitioners claim that the transactions were sales of future goods, namely of the fish in these sections of the lake, and that as fish is moveable property Orissa Act I of 1952 is not attracted as that Act is confined to immoveable property.

We agree with the learned Solicitor-General that if this is the basis of their right, then their petition under article 32 is mis.conceived because until any fish is actually caught the petitioners would not acquire any property in it.

There can be no doubt that the lake is immoveable property and that it formed part of the Raja's estate.

As such it vested in the State of Orissa when the notification was issued under the Act and with it vested the right that all owners of land have, to bar access to their land and the right to regu1.ate, control and sell the fisheries on it: If the petitioners' rights are no 1noe t1"m the right to obtain future goods under the Sale of Gooch Act, then that is a purely personJ.1i-1gl1t ::irising out of contract to \vhich the State of Orissa is not a party and in any event a

re!usal to perfor1n the co~1tract tl1at gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right.

But though that is how the matter is put in the petition, we do not think that is a proper approach to this case.

The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period.

That amounts to

a license to enter on the land coupled with a grant to catch and , carry away the fish, that is to say, it is a profit a prendre : see 11 Halsbury's Laws of England, (Hailsham Edition), pages 382 and 383. In England this is regarded as an interest in land ( 11 Halsbury's Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382). In India it is regarded as a benefit that arises out of the land and as such is immoveable property.

Section 3(26) of the General Clauses Act defines "immoveable property" as including benefits that arise out of the land. The Transfer of Property Act does not define the term except to say that immoveable property does not include standing timber, growing crops or grass. As fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable property within the meaning of the Transfer of Property Act.

Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised. As a profit a prendre is immoveable property and as in this case it was purchased for a price that was paid it requires writing and registration because of section 54 of the Transfer of Property Act. If a profit a prendre is regarded as tangible immoveable property, then the "property" in this case was over Rs. 100 in value. If it is intangible, then a registered instrument would be necessary whatever the value. The "sales" in this case were oral : there was neither writing nor registration.

That being the case, the transactions passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce.

It is necessary to advert to Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh(1) and explain it because it was held there that a right to "pluck, collect and carry away" tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an "en-

(!) [1953) S.C.R. 476. 4-85 S. C. India/59

Ananda B11ur11

am/ anolhlr

Thi Stall of Oriss11

and anolh1r

BoSI].

.Atwula Bllrno

aNl anotlllr

Thi Stou of Ori.rsa

ad an""6r

Bou].

i:umbrance" within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act. But the contract there was to "pluck, collect and carry away" the leaves. The only kind of leaves that can be "plucked" are those that are growing on trees and it is evident that there must be a fresh crop of leaves at periodic intervals. That would make it a growing crop and a growing crop is expressly exempted from the definition of "immoveable property" in the Transfer of Property Act. That case is distinguishable and does not apply here.

It was then argued that a contract is "property'' within the meaning of articles 19(1)(f) and 31(1).

Again, we need not decide this bacause even if it be assumed that it is that kind of property the State of Orissa has not taken the petitioners' contract away from them or prevented them from "acquiring, holding or disposing" of it. They are free to sue on it or to assign it if they want. The State merely says, as any other person might say : "I was not a party to that contract.

Neither its rights nor its liabilities have devolved on me and I refuse to recognise it or to assume the obligations of either contracting party".

If the State is wrong in its attitude that may give rise to a suit against it for damages for breach of contract or possibly, (though we do not say it would), . to a right to sue for specific performance ; but no question under articles 19(1) (f) and 31(1) can arise because the State has not ccnfis.cated or acquired or taken possession of the contract as such. If it had it would have claimed the benefits under it. It would have taken the money that the petitioners paid to the Raja from the Raja or demanded it over again from the petitioners. But it is not doing that. It simply refuses to recognise the existence of the contract.

The petition fails and is dismissed with costs.

section 20

section 3

Karuppur

section 3

ANANDA BEHERA AND ANOTHER

THE STATE OF ORISSA AND ANOTHER

S. R. DAs

VIVIAN BosE

AIYAR

Constitution of India

Arts. 19(1)

Estates Abolition Act, 1951

Orissa Act I of 1952

Transfer of Property Act

s. 54

Ananda Behera

State of Orissa

State of Orissa

s. 3(25)

General Clauses Act

s. 54

s. 54

Transfer of Property Act

Arts. 19(1)(£) and 31

Article 32

H. Mahapatra

G. C. Mathur

C K. Daphtary

Porus A. Mehta

P. G. Gokhple

Orissa Act I of 1952

Gerasar

Stale of Orissa

A.nanda Behtra

article 32

articles 19(1)(f) and 31(1)

articles 19(1)

Orissa Act I of 1952

article 32

State of Orissa

England

India

Section 3(26)

General Clauses Act

Transfer of Property Act

General Clauses Act

Transfer of Property Act

section 54

Transfer of Property Act

Ananda B11ur11

.Atwula Bllrno

Transfer of Property Act

articles 19(1)(f) and 31(1)

articles 19(1)


2S.C.R.

SUPREME COURT REPORTS

MATAJOG DOBEY

H. C. BHARI

(WITH CONNECTED APPEAL)

[S. R. DAs, AcT!NG C.J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CHANDRASEKHARA A1YAR JJ.]

Constitution of India, Art. 14--Criminal Procedure Code (Act V of 1898), s. 197-Whether ultra vires the Constitution-Sanction

undr:r s. 197-Reasonable connection between the act and discharge of Official duty-Need for sanction-When to be considered-Power conferred or duty imposed-Implies power of employing all means for execution thereof.

1n pursuance of a search warrant issued under s. 6 of the Taxa- 'tion on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case.

On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours.

Two separate complaints-one by the darwan and the other by the proprietor-under ss. 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates.

The common question for determination in both the complaints was whether under the circumst:rnces sanction was necessary under s. 197 of the Code of Criminal Procedure.

Held that sa.nction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of s. 197 of the Code of Criminal Procedure.

Art. 14 does not render s. 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against another is based on a rational classification.

A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official.

In the matter of grant of sanction under s. 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty.

In other words there must be a reasonable connection between the act and the discharge -0f official duty ; the act must bear such relation to the duty that the

Octohr 31

MoJajoz Dobey

H.C. Bhari

accuserl could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

The need for sanction under s. 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done orpurported to be done in the discharge of official duty ; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of .the case.

Where a power i!; conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as arc reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command .

. Gill and another v. The King, (1948) L.R. 75 I.A. 41, Hori Ram Singh v. The Crown, (1939) F.C.R. 159, 178, Albert West Meads v.

The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley v. The King-Empero1, (1944) F.C.R. 262, Shreekantiah Ramayya Munipalli v. The State of Bombay. (1955) 1 S.C.R. 1177, Amrik Singh v. The State of PEPSU, (1955) 1 S.C.R. 1302, Sarjoo Prasad v. The King-Emperor, (1945) F.C.R. 227, /ones v. Owen,

(1823) L.J. Reports (K.B.) 139 and Hatton v. Truby. (1897) L.R. 2 Q.B.D. 452, referred to.

CRIMIN AL

APPELLATE f URISDICTION : Criminal Appeals Nos. 67 and 68 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of the Calcutta High Court in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of the Court of Presidency Magistrate at Calcutta m Case No. C/2867 of 1950.

S. C. Isaacs ( C. P. Lal with him) for the !ant in both appeals.

C. K. Daphtary, Solicitor-General ofi India A. Mehta and P. G. Gokhale with him) for the dents in both appeals.

appel-

(Porus respon-

1955. October 31. The Judgment of the Court was delivered by

CttANDRASEKHARA A1YAR J .-These appeals come before us on special leave to appeal granted under article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petitions Nos. 559 of 1951 and 312of 1952 preferred by the appellants respectively.

In Criminal Revision Petition No. 559 of 1951, the High Court (Harries, C.J. and Banerjee, J.) confirmed .an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal Procedure Code.

In Criminal Revision Petition No. 312 of 1952, Lahiri ; and Guha, JJ. set aside an order made by another Presidency Magistrate that no sanction was required and they quashed the proceedings against the accused.

The incidents which gave rise to the two complaints are closely inter-related and can be set out briefly.

In connection with certain proceedings pending before the Income Tax Investigation Commission it was found necessary to search two premises-17, Kalakar Street and 36, Armenian Street to inspect, take copies and secure possession of certain books, papers and documents believed to be in them. A warrant was issued by the Commission for this purpose in favour of four persons, namely, H. C. Bhari, A. D. De, A. K.

Bose and P. Mukherjee, to carry out the search.

The authorised officials went to the Kalakar Street premises, third floor on the morning of December

1950.

Matajog Dobey, (Appellant in Criminal Appeal No. 67), the darwan of Kashiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist. They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables. They tied him with a rope and assaulted him causing injuries. On these facts, he filed a complaint on 27-12-1950 against H.C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Indian Penal Code.

Matajog Do61.1

H.C. Bhari

Molqjog Dobf!!

H.C. Bhari

Clumdraukhara

.diJ'M J.

The four officials and some policemen raided the Armenian Street premises on the evening of 26-12-1950.

Nandram Agarwala (father of Kashiram Agarwala) came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were collecting and packing into bundles for removal. He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought te> be seized and removed.

Thereupon, rwo policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was assaulted again before being sent to the hospital. He was brought back and kept in the lock up till midnight when he was released on bail. Setting out these facts, he looged a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later. The offences mentioned in the complaint are sections 323, 342 and 504, Indian Penal Code. Later, the names e>f two police officers were given-Bibhuti Chakravarti and Nageswar Tiwari.

The two complaints were sent over for judicial inquiry to two different magistrates.

On 21-2-1951, the magistrate held on Agarwala's complaint that a prima facie case had . been made out under section 323 against all the four accused and under section 342 against the two policemen. On this report, summonses were directed to issue under section 323 against all the accused.

On 1-5-1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22-5-1951.

It was on this latter date that the !st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal Procedure Code. The objection was uphdd and all the accused discharged on 31-5-1951.

Nandram Agarwala went up to the High Court in revmon, but the order of the Presidency Magistarte was affirmed.

In Matajog Dobey's complaint, after the termination of the inquiry, process was issued .only against Bhari under sections 323 and 342, Indian Penal Code for 22-12-1951.

After some adjournments, accused filed on 26-2-1952 a petition as in the other case rais.- ing the same objection. The magistrate on whose fiie the case was pending overruled the objection and directed that the , case should proceed. Accused Bhari took the matter on revision to the High Court and succeeded.

In Nandram Agarwala's case (Criminal Revision Petition No. 559 of 1951) Chief Justice Harries and Banerjee, J. held that the test formulated by the Privy Council in Gill's case(1) applied and that on a fair reading of the complaint, bereft of exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty. In Matajog Dobey's case (Criminal Revision Petition No. 312 of 1952), the learned Judges (Lahiri and Guha, JJ.) came to the same conclusion in these words : "From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search".

Mr. Isaacs, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions. on their behalf. Firstly, an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act in the discharge of official duty ; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope

of employment ; and thirdly, that in any case it was the duty of the court to allow the prosecution to proceed and not stifle it in limine. He also urged that as the entry on the 23rd December was into a wrong place, P-17, Kalakar Street, and not 17, Kalakar Street which was the authorised premises, the search was illegal from the commencement. He raised the

(l) [1948) L.R. 75 I.A. 41.

Motsjot Dobt'.;

H.C. IJMri

Matajog Dobey

H. C. Bhari

C!iandra.rtkhara

.A.iJar ].

constitutiona:. point that on Income (!Pvestigation 1947) and section 197, ultra vires, as they were and offenJed article 14 of

section 5 ( 1) of . the Taxation Commission) Act (XXX of Criminal ProceJure Code were discriminatory in their nature, the Constitution .

In the course of his arguments, he referred to section 6 sub-sections (7) and (9) of the Taxation on Income (Investigation Commission) Act (XXX of 1947) and rule 10 and the search warrant that was issued under them. His main argument was that there was no power conferred by statute or under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment.

He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position.

The search warrant is in these terms : "Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8.

Taxation on Income (Investigation Commission) Act, 1947.

Whereas . information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relc\'ant to procce<lings under the above Act in the cases compendiously known as the S. Jhabbarmull group

(R.

C. No. 313) and connecteJ cases have been kept dnJ are to be foun<l in (i) the third floor, 17, Kalakar Street, Calcutta (ii) 47, Khengraputty Street, Calcutta-7, and (iii) the second floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and out-houses or other places in that locality.

This is tG authorise and require you, Sri H. C. Bhari, AuthoriseJ Official, Income-tax Investigation Commission,

(a) to enter anJ search with such agsistance of police officers as may be required, the said premises -0r any other place or places where you may have

reason to believe that such books, documents or papers may be found ;

(b) to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks ; ( c) to make copies or extracts from such books, documents and papers ; ( d) to seize such books, documents and papers and take possession thereof ; and ( e) to exercise all other powers and duties under the said sections and the Rules relating thereto".

Straightaway, it may be conceded that the warrant set out above specifies precisely the scope of the .duties entrusted to the authorised officials. Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear.

This, however, .does not matter as the warrant authorises police assistance at the search.

The version of the complainants as to what happened at the search is set out in the two complaints. The story of the accused is found in the petitions filed by Bhari urging the objection under section 197, Criminal Procedure Code. Details about the occurrences were also elicited at the two judicial enquiries. There are two medical certificates specifying the injuries found on Nandram Agarwala and Matajog Dobey.

The minor contentions may be disposed of at the outset. Even if there was anything sound and substantial in the constitutional point about the vires of section 5 ( 1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal.

Article 14 does not render section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification.

Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that

Matajog Dobe_,

H.C. Bhari

Chnndrasekhara

Ajyar J.

19M

Mot<Jo11 Dob,,

H, G. B/ul.ri

CllM4tWtk!orro

Aiyar :J.

section 197, Criminal Procedure Code vested an absolutely arbitrary power . in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination. between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the Govern, ment gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain of discrimination.

But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the government a!1d not i'1 a minor official. Further, we are not now concerned with any such question. We have merely to see whether the court could take cognisance of the case without previous sanction and for this purpose the court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or not is a matter for the government to consider.

Theabsolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.

The objection based on entry into the wrong premises is of no substance ; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error ; or it may be that the party madean honest mistake.

As a matter of fact, the account books, etc., were found in P. 17, the premises raided.

Slightly differing tests have been laid down in thedecided cases to aseertain the scope and the meaning of the relevant words occurring in section 197 of the Code ; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence ; the only point to determine is whether it was committed in the discharge of official duty.

There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.

What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

In Hori Ram Singh v. The Crown(1), Sulaiman, J. observes:

"The section cannot be confined to only such acts

a5 arc done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction".

The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187 : "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it".

In affirming this view, the Judicial Committee of the Privy Council observe in Gill's case(s) "A public servant can only be said to act or purport to act in the

discharg~ of his official duty, if l.lis act is such as to

(l) f1939] F.G, R. 159, 178.

(2) tl948] L.tl. 7~ I.A. H.

Mattljog Doi# v H.C. Bfiari

Chandrasekfttwc

A!Yat' J.

-MtJtajog Dobty

H.C. Bhari

l C Jumdras1khara

A!Jar ].

lie within the scope of his official duty .... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". Hori Ram's case( 1) is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. The King-Emperor(') but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads

v. The King(') does not carry us any further ; it adopts the reasoning in Gill's case(').

There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. The State of Bombay('), Bose, J. observes as follows : "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharged of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. The State of PEPSU('). A fairly lengthy discussion of the authorities is followed up with this summary : "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197 (I) would be necessary ; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".

The result of the foregoing discussion is this : There must be a reasonable connection between the act and the discharge of official duty ; the act must bear such

(I) [1939) F.C.R. 159, 178.

(2) [1944) F.C.R. 262.

(3) [1948] L.R. 75 I.A. 185.

\4! [1948) L.R. 751.A. 41.

(5) [1955] I S.C.R. 1177, 1186. (6J [1955] l S.C.R. 1302, 1307, 1308.

relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained ? At first sight, it seems as though there is some support for this view in Hori Ram's case and also in Sarjoo Prasad v. The King-Emperor( 1 ). Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution.

Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussions in these words : "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged ag:iinst the appellant or sought. to be proved against him relates to acts done or purporting to be done by him in the execution of his duty". It must be so. The question may arise at any stage of the proceedings.

The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty ; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage.

The necessity may reveal itself in the course of the progress of the case.

\Ve are not prepared to concede in favour of the

(I) [1945] F.C.R. 227.

Matajog Doh.,

H.C. Bhari

Chandrasekhara;

Aryar].

Matajog Dobey

H. C. Bhari

Chandrasekhar a

Ajyar J.

appellants the correctness of the extreme proposition advanced by Mr. Isaacs on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials conducting the search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint. Such a view would frustrate the due discharge to the official duty and defeat the very object of the search, as the books, etc. might be secreted or destroyed in the interval ; and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject-matter for inqmry during the proceedings ; it would not make the act of removal improper or unlawful. It is a matter for doubt if Chapter V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, sub-section (9) of the Investigation Commission Act makes the provisions relating to searches applicable only "so far as they can be made applicable".

The two English cases relied on are scarcely of any help. In Jones v. Owen('), a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside. Hatton v. Treeby(') was a case where the Act of Parliament which created a new offence did not in itself provide for a power of detention of the offender.

Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution . . If in the exercise of the power or the performance

(1) (1823) L.J. Reports (KB) 139; 2 D. & R. 600.

(2) (1897] L.R. 2 Q.B.D. 452.

of the official duty, improper or unlawful obstruction or resistance is encountered, .. there must be the right to use reasonable means to remove the obstruction or overcome the resistance.

This accords with om monsense and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Ed., at page 312 : "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command".

Let us however assume that Mr. Isaacs is right in his contention. Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruction then and there by binding down the complaints or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily ma/a fide and so entirely divor.ced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated.

They could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well-founded or not.

Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc. alleged against the accused are definitely related to the performance of their official duties.

But taken along with them, it seems to us to be an obvious case for sanction. The injuries-a couple of abrasions and a swelling on Nandram Agarwala and two ecchymosis on Matajog-indicate nothing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded.

Mr. Isaacs finally pointed out that the fourth accused Nageswar Tewari was a constable and the case should have been allowed to proceed against him at least. This question arises only in Nandram Agarwala's case. The Magistrate who dismissed the cori-

Maiqjo6 Dsbf.1

H. C. Bluzri

Clrmldrasiklwa

Ajy"' ].

Matajog Dobey

H. C. B/UJri

Chandrast/chara

Ai1ar ].

plaint took the view that there was no use in proceeding 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 correct 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 execution 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 Procedure (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 Subordinate 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 respondents then instituted the present suit in the District Court of East

(odavari \vhich then had jurisdiction O\'Lr the properties in suit, for a declaruion that the decree obtained by the appellant \Vas fraudulent 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

sbre. 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 diect a sale of the mortgaged properties but a sale of the mortgagee'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

MATAJOG DOBEY

H. C. BHARI

S. R. DAs

VIVIAN BosE

JAFER IMAM

Constitution of India

Art. 14

Criminal Procedure Code

s. 197

s. 197

s. 6

Calcutta

darwan

ss. 323, 342

Indian Penal Code

s. 197

Code of Criminal Procedure

s. 197

Code of Criminal Procedure

Art. 14

s. 197

Code of Criminal Procedure

s. 197

Code of Criminal Procedure

MoJajoz Dobey

H.C. Bhari

s. 197

Code of Criminal Procedure

(1948) L.R. 75 I.A. 41

(1939) F.C.R. 159

(1948) L.R. 75 I.A. 185

(1944) F.C.R. 262

(1955) 1 S.C.R. 1177

(1955) 1 S.C.R. 1302

(1945) F.C.R. 227

S. C. Isaacs

C. P. Lal

C. K. Daphtary

India A. Mehta

P. G. Gokhale

CttANDRASEKHARA A1YAR

article 136

Calcutta High Court

Harries

Banerjee

section 197

Criminal Procedure Code

Guha

Income Tax Investigation Commission

H. C. Bhari

A. D. De

A. K.

Bose

P. Mukherjee

Matajog Dobey

Kashiram Agarwala

H.C. Bhari

sections 323, 341, 342 and 109

Indian Penal Code

H.C. Bhari

Nandram Agarwala

sections 323, 342 and 504

Indian Penal Code

Bibhuti Chakravarti

Nageswar Tiwari

Agarwala

section 323

section 342

section 323

Bhari

section 197

Criminal Procedure Code

Matajog Dobey

sections 323 and 342

Indian Penal Code

Gill

Lahiri

Isaacs

L.R. 75 I.A. 41

section 197

article 14

section 5

XXX of Criminal ProceJure Code

section 6

sections 6(7) and 6(9)

H. C. Bhari

section 197

Criminal Procedure Code

section 5

Article 14

section 197

Criminal Procedure Code

Matajog Dobe

Ajyar

section 197

Criminal Procedure Code

section 197

section 197

Sulaiman

Varadachariar

Hori Ram

section 197

Bose

section 197

Code of Criminal Procedure

section 197

[1939) F.C.R. 159

[1944) F.C.R. 262

L.R. 75 I.A. 185

[1945] F.C.R. 227

Matajog Doh

H. C. Bhari

Chandrasekhar

section 6

Parliament

Broom

Matajog

Nageswar Tewari

H. C. Bluzri

MERLA RAMANNA

NALLAPARAJU

VENKATARAMA AYYAR

B. P. SINHA

Code of Civil Procedure

s. 47

Limitation Act

District Court of East

(odavari


Matajog Dobey

H. C. B/UJri

Chandrast/chara

Ai1ar ].

SUPREME COURT REPORTS

[1955J

plaint took the view that there was no use in proceeding 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 correct 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 execution 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 Procedure (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 Subordinate 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 respondents then instituted the present suit in the District Court of East

(odavari \vhich then had jurisdiction O\'Lr the properties in suit, for a declaruion that the decree obtained by the appellant \Vas fraudulent 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

sbre. 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 diect a sale of the mortgaged properties but a sale of the mortgagee'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

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 contention.

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 an application under s. 4 7 subject to any objection as to limitation or jurisdiction.

That he application was not barred under Art. 165 as it applied only to applications for restoration to possession by persons other than judgment-debtors and had no application to the present case.

Vachali Rohini v. Kombi Aliassan ( [ 1919] I.LR. 42 Mad. 753 ), Ratnam Aiyar v. Krishna Doss Vital Doss ( [1897] I.LR. 21 Mad. 494), Rasul v. Amina ([1922] I.LR. 46 Born. 1031) and Bahir Das

v. Girish Chandra ([1922] A.LR. 1923 Cal. 287), approved.

Nor could Art. 166 apply since it had application only where the sale was voidable and not void and had to be set aside. That the article applicable to a case of a void sale such as the present was Art. l R 1 of the Indian Limitation Act . . Seshaf!iri Rao v. Srinivasa Rao (f 1919] I.LR. 43 Mad. 313), Ra7agopaltt'r v. Ramanujachariar ([1923] l.L.R. 47 Mad. 288), Monmothanath Chose v. Lach mi Devi ( [1927] I.LR. 55 Cal. 96), Nirode Kali Roy v. Hart:ndra Nath (I.L.R. [1938] 1 Cal. 280), and 5-85 S.C. Iudia/59

M1rla RamaMa v.

N allapcraju

and otkrs

Mn/a Ra...,...

Nollaparaju

and oJ/rlr.s

Ma We Gyan v. Maung Than Byu (A.LR. 1937 Rang. 126), ap proved.

That the starting point of limitation for an application under Art. 181 would be the date of dispossession by the purchaser and not the date of the void sale which had no existence in law and the plaint in the present suit, treated as an application, having been filed within 3 years of such dispossession was in time.

Chengalraya v. Kollapuri (A.LR. 1930 Mad. 12), approved. 1'hat the District Court of East Godavari to \vhose jurisdiction the properties had been transferred before the present suit was instituted had by reason of such transfer acquired an inherent jurisdiction over them and if it entertained an application for executior, with reference to them such action was no more than an irregula.r /

assumption of jurisdiction and no objection to jurisdiction having been taken by the appellant at the earliest opportunity he must be deemed to have waived it and, consequently, there was no legal bar to treating the plaint as an execution application under s. 47 of the Code.

Balakrishnayya v. Linga Rao (I.L.R. [1943] Mad. 804), applied.

Casela w discussed.

C1v1L

APPELLATE JuRISDICTION : Civil Appeal No. 183 of 1952.

Appeal by special leave from the Judgment and Decree dated the 16th day of February, 1950 of the Madras High Court in Second Appeal No. 1826 of 1945 from Original Decree dated the 16th March, 1945, of the Court of District Judge, East Godavari at Rajahmundry in A.S. No. 32 of 1943 arising out of the Decree dated the 31st October, 1942, of the Court of Sub-Judge, Rajahmundry in Suit No. 17 of 1940 and O.S. No. 39 of 1939.

B. Somayya (K. R. Chaudhury and Naunit Lal, with him) for the appellant.

K. S. Krishnaswamy Aiyangar, (K. R. Krishnaswamy, with him) for respondents Nos. 1 to 4.

1955.

November 4.

The Judgment of the Court was delivered by

VENKATARAMA

AYYAR J.-This IS an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the concurrent judgments of the .courts below, and granted a decree

in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future.

All these lands measuring 543 acres 65 cents were purchased by five co-sharers on 5-6-1888 under two sale deeds, Exhibits P and P-1. One of these shares of the extent of about 218 acres was, at the mateiral dates, held in common by· two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents.

On 19-8-1908 Kumara executed a simple mortgage, Exhibit Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Achutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada.

On 19-7-1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs. 2,000 over all the 218 acres belonging to them in favour of Achutaramaraju. On 4-6-1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Exhibit Q-1 for Rs. 2,500 in favour of Achutaramaraju. On 14-12-1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held in full ownership as co-sharer, and also the mortgage right which he -held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exhibits Q, A and Q-1. On 29-8-1920 Kumara sold the 81 acres 45 .cents belonging to him and comprised in the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as per Exhibit G, and thereby the two deeds, Exhibits Q and Q-1 became completely discharged and Exhibit A to the extent of the half share of Kumara. The position then was that Achutaramaraju became the owner of 81 acres 45 cents out of the properties mortgaged under Exhibit A, and continued to be a simple mortgagee as regards the rest of them to the extent of half the amount due therein.

By virtue of section 70 of the Transfer of

Merla RmnanM

N allaparaju

and others

V1nkatarama

AJ7ar ].

Mtr[a Ramantt4.

N al/a/)araju

mu/ others

Vtnkatarama

Ayyar ].

Property Act, the sale under Exhibit G would enure for the benefit of the mortgagee, Merla Agastayya, being an accession to the interest of his mortgagor.

On 20-1-1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S.

No. 25 of 1927 on the file of the court of the Subordinate Judge of Kakinada to recover the amount due thereon by sale of the hypotheca. Achutaramaraju, the mortgagor, and the members of his family were defendants 1 to 4 in that suit. Kumara was impleaded as the 14th defendant and Rangaraju and his son as defendants 15 and 16. In the plaint, it was alleged that the properties comprised in the mortgage deed, Exhibit C, consisted of the properties belonging to the mortgagors in full ownership as co-sharers and also of the mortgage right under Exhibits Q, A and Q-1.

Then there was an allegation that defendants 1 to 4 had themselves purchased the mortgaged properties "towards discharge of the first defendant's mortgage debts".

As a statement of fact, this was not accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the remaining properties continued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A.

There were the further allegations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors-in-title in respect of the properties which were mortgaged under Exhibits Q, A and Q-1. Then there was the general prayer for the sale of the properties.

The mortgagors, defendants 1 to 4, entered into a compromise with the plaintiff, while defendants 14 to 16 remained ex parte.

On 31-1-1931 the suit was decreed in terms of the compromise as against defendants 1 to 4 and ex parte as against defendants 14 to 16, and a final decree was passed on 6-11-1932. On 23-8-1934 the decree-holder filed E.P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Exhibit A.

Defendants 15 and 16 then intervened, and filed an objection to

their being sold on the ground that the mortgage had been discharged in 1923, and that the ex parte decree against them had been obtained fraudulently.

This application was rejected by the Subordinate Judge on 26-8-1935, and an appeal against this order to the High Court, Madras was also dismissed on 1-9-1938.

Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81 acres 86} cents belonged to Rangaraju, were brought to sale. on the 14th and 15th April, 1936, and purchased by the decree-holder himself. The sale was confirmed on 26-6-1936, and possession taken on 15-12-1936. But before possession was taken, on 14-12-1936 Rangaraju and his sons instituted O.S. No. 268 of 1936 in the District Munsif's Court, Rajahmundry for a declaration that tl1e decree in O.S. No. 25 of 1927 had been obtained fraudulently, and that the decree-holder was not entitled to execute the decree as against their properties.

An objection was taken to the jurisdiction of the Court of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper court. Thereupon, they instituted on 7-8-1939 the present suit, 0.S. No. 39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in 0.S. No. 25 of 1927 was obtained by suppressing service of summons, and was therefore void and .could not affect their title to 136 acres 45 cents which were mortgaged under Exhibit A. The suit was transferred to the court of the Subordinate Judge of Rajahmundry, and was numbered as O.S. No. 79 of 1940.

In his written statement, the appellant denied that the decree in O.S. No. 25 of 1927 was obtained fraudulently, and contended that the present suit was barred by limitation. He also pleaded that as he had purchased the properties in execution of the decree and obtained possession thereof, the suit which was one for a bare declaration that the decree was void and inexecutable was not maintainable.

It must be mentio;1ed that while 81 acres 86! cents of land belonging to Rangaraju and his sons had been sold on the 14th and 15th April, 1936, their remaning properties of the

Merla Rsmimna , ..

Nal/llparqju

and othns

Venkatarama

Ayyar J.

Merla Ramanna

NaUaparaju

and others

Vfnkatarama

Ayyar J.

extent of 54 acres 58i cents were sold after the institution of O.S. No. 268 of 1936 in the court of the District Munsif, Rajahmundry. In view of the objections aforesaid, the plaintiffs amended the plaint by adding a prayer that 136 acres 45 cents out of the total of 543 acres 65 cents in schedule A and belonging to them might be partitioned and put in their separate possession.

The Subordinate Judge of Rajahmundry dismissed the suit on the ground that no fraud had been established, and that the suit was barred by limitation in so far as it sought to set aside the decree on the ground of fraud. The plaintiffs appealed against this judgment to the District Court of East Godavari, which by its judgment dated 16th March, 1945 affirmed the decree of the Subordinate Judge.

The plaintiffs then preferred Second Appeal No. 1826 in the High Court, Madras. There, for the first time the contention was pressed that the decree in O.S.

No. 25 of 1927 on its true construction directed a sale only of the mortgage rights which Achutaramaraju had over the A schedule properties, and that the sale of the properties themselves in execution of that decree was in excess of what the decree had directed, and was therefore void, and that the plaintiffs were accordingly entitled to recover possession of those properties ignoring the sale.

Satyanarayana Rao, J. who heard the appeal, construed the plaint as sufficiently raising this question and issue (2) (b) as covering this contention, and accordingly directed the District Judge to return a finding on the question as to whether the sale of the properties was warranted by the terms of the decree. The bistrict Judge of East Godavari to whom this issue was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A, and that the sale of the properties themselves was not in accordance with the decree.

But he further held that this was an objection relating to the execution of the decree. which could be agitated only before the executing court, and that a separate suit with reference to that matter was barred under section 47, Civil

Procedure Code. On this findings, the second appeal came up for final disposal before Satyanarayana Rao, J. who agreed with the District Judge that the sale of the properties was not authorised by the decree, and was therefore void.

But he declined to entertain the objection that the suit was barred bv section 47, Civil Procedure Code, on the ground that it had not been taken in the written statement, and was a new contention preferred for the first time at the stage of second appeal.

In the result, he granted a decree for partition and delivery qf 136 acres 45 cents out of the properties mentioned in schedule A to the plaintiffs, and mesne profits, past and future. Against this judgment, the defendant prefers the present appeal, and insists that the suit is liable to be dismissed as barred by s'ection 47, Civil Procedure Code.

On behalf of the appellant, it was contended by Mr. Somayya that the question whether having regard to section 47 the suit was maintainable was argued before the learned Judge before he called for a finding, and that it ought to have been therefore considered on the merits, and that, in any event, as it was a pure question of law and went to the root of the matter, it ought to have been entertained. On behalf of the respondents, Mr. Krishnaswami Iyengar vehemently contends that as the objection to the maintainability of the suit based on section 47 was not taken in the written statement, the learned Judge had a dis.cretion whether he should permit the point to be raised for the first time in second appeal or not, and that we should not interfere with the exercise of that discretion in special appeal. The basis on which the suit has now been decreed is that the decree in O.S. No. 25 of 1927 properly construed directed only a sale of mortgage rights under Exhibit A and not of the properties, but it must be conceded that this point does not distinctly emerge on the face of the plaint.

It is true that there are allegations therein which might be read as comprehending that question, but they are vague and elusive, and what is more, . this contention was not argued either in the court of the

M<rla Ramanna

N allaparaju and others

V enkatarama

Ayyar ].

Mirta Ramanna

JV allajJMaju

and others

V tnkatarama

Ayyar J.

Subordinate Judge of Rajahmundry or in the District Court of East Godavari, and it is only in second appeal that the question appears to have been first thought of in this form. Though we are not prepared to say that the allegations in the plaint are not suiliciei:t to ·-:over this point, we are of the opinion that they are so obscure that it is possible that the appellant might have missed their true import, and omitted to plead in answer thereto that the suit was barred by section

47. Apart from this, it is to be noted that this point does not involve any fresh investigation of facts.

Indeed, when the matter was before the District Judge in pursuance of the 01"' er of the High Court calling for a finding, coum" [ on both sides understood it as involving a decisill11 on this point as well, and the argument proceeded on the footing that i.t was a pure question of law involving no further enquiry on facts.

We have therefore permitted the appellant to raise this contention.

Mr. Somayya for the appellant does not challenge the fine.ling of the District Court confirmed by the High Court that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A, but he contends that the sale in execution of that decree of not merely the mortgage rights unc.ler Exhibit A but of the properties themselves was excessive execution against which the judgment-debtc:ir was entitled to obtain relief by application to the execution court, and that a separate suit with reference thereto would be barred under section 47, Civil Procedure Code.

It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under section 47, Civil Prnrcdure Code and not in a separate suit.

In /. Marret v. Md. K. Shirazi & Sons('} the facts were tl 1at Jil order was made by the execution court directing, contrary to the terms of the decree, payment of a certain fund to the decree-holder. A separate suit

(l) A.!.R. 1930 P.C. 86.

having been instituted by the judgment-debtor for recovery of the amount on the ground that the payment was not in accordance with the decree, it was held by the Privy Council that the action was barred under section 47. A case directly in point is Venkatachalapathy Aiyen v. Perumal Aiyen(1 ). There, the suit was to enforce a mortgage which related both to properties held in ownership by the mortgagor and mortgage rights held by him. In execution of the decree passed therein, the properties themselves and not merely the mortgage rights wer sold. The judgment-debtor then sued for a declaration that what was sold was only the mortgage right and to recover possession of the properties. It was held that such a suit was barred under section 47. Vide also the decisions in Biru Mahata v.

Shyama Charan Khawas( 2 ), Abdul Karim v. Islamunnissa Bibi( ) and Lakshminarayan

v. Laduram(').

The position is, in our opinion, too well settled to be open to argument, and it must accordingly be held that the present suit is barred under section 47, Civil Procedure Code.

That, however, does not conclude the matter. Section 47, clause (2) enacts that "the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding .... ". Under this provision, this Court has the power to treat the plaint presented on 7-8-1939 as an application under section 47 provided that on that date an application for the relief claimed was not barred by limitation, and provided further that the court in which it was filed was competent to execute the decree. On the question of limitation, the relevant dates are the 14th and 15th April, 1936, when 81 acres 86t cents belonging to the plaintiffs were sold, and 15th December, 1936, when possession was taken thereof through court. As regards the remaining properties, the exact date on which they were sold does not appear on the record, but it is sufficient for the present purpose that it was subsequent to the institution of O.S. No. 268 of 1936 on

(1) [1912] M.W.N. 44.

(2) [1895] I.L.R. 22 Cal. 483.

(3) [1916] I.L.R. 38 All. 339.

(4) [1931] A.I.R. 1932 Bom. 96.

MerltJRant1JMa

N al/a para ju

andothm

Venkatarama

Ayyar J.

Meria l/amamuJ

N al/aparajo

tint! others

Y enkata,.ama

A"ar ].

the file of the District Munsif's Court Rajahmundry, which was on 14-12-1936.

Now, the point for determination is whether the pbint was barred by limitation either under article 165 or article 166 of the Indian Limitation Act, if it is treated as an execution application presented on 7-8-1939, or whether it was in time under article 181.

Un<ler article 165, an application by a person dispossessed of immovable properties and disputing the right of the decree-holder or purchaser at an execution sale to be put in possession must be filed within 30 days of dispossession. If this is the article applicable to the present proceedings, then it must be held that the plaint treated as an execution application was filed out of time. Jn Vachali Rohini v. Kombi

Aliassan('), a Full Bench of the Madras High Court has held, dissenting from the view previously expressed in Ratnam Aiyar v. Krishna Doss Vital Doss( 2 ) and following Abdttl Karim v. Mt. lslamunnissa Bibi('), that this article applies only to applications for being restored to posession by persons other than judgment-debtors, as under Order XXI, rule 100, Civil Procedure Code and that applications by judgmentdebtors claiming relief on the ground that their properties had been erroneously taken in execution of the decree are not governed by it. This view was approved and followed in Rasul v. Amina(') and Bahir Das v. Glrish Chandra('). We are of the opinion that the law has been correctly laid down in the above decisions, and that in accordance therewith, the present proceedings are not barred by article 165.

Coming next to article 166, an application by a judgment-debtor to set aside a sale in execution of a decree has, under that article, to be filed within 30 -days of the sale. If the present proceedings are governed by this article, there can be no question that they are barred by limitation. But then, there is abundant authority that article 166 applies only when the sale is one which has under the law to be

(1) [1919l I.L.R. 42 Mad. 753.

(2) [1897] I.L.R. 21 Mad. 494.

(3) [1916 !.L.R. 38 All. 339.

(4) [1922] !.L.R. 46 Born. !031.

(5) [1922] A.J.R. 1923 Cal. 287.

set aside as for example, under Order XXI, rules 89, 90 and 91, but that it has no application when the sale is inoperative and void.

In Seshagiri Rao v.

Srinivasa Rao(1 ), the appellant was a party to the suit, but the decree had exonerated him from liability.

In execution of the decree, his three-fourths' share in the properties was sold on 26-1-1910 and purchased by the decree-holder and possession delivered to him on 16-12-1910.

The appellant then filed a suit on 25-7-1911 to set aside the sale on the ground that it was in contravention of the decree and therefore void.

An objection having been taken by the defendant that the suit was barred under section 47, the court, while upholding the same, held that the plaint could be treated as an application under that section if it was in time as an execution :i.pplication, and the question arose for decision whether the application was governed by article 166 or article 181 of the Indian Limitation Act.

It was held that as the sale was a nullity, it ha<l not to be set aside under the law, and therefore the article applicable was article 181 and not article 166. This statement of the law was approvcc\ by a Full Bench of the Madras High Court in Rajagopa!ier v.

Ramanujachariar( 2 ). A similar decision was given in Manmothanath. Chose v. Lachmi Devi( ), wherein it was observed by Page, J. that the sale being 'ioid need not have been set aside at all, and the or<ler to be passed was "in substance merely a declaration that the sale was null and of no effect".

The question whether an application by a judgmentdebtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void was governed by article 166 or article 181 came up directly for consideration in Nirode Kali Roy v. Harendra Nath(4 ). In holding th:it the application was governed by article 181, B. K. Mukherjea, J.~ (as he then was) observed that "article 166 must be confined to cases where the sale is voidable only and not void when the execution sale is a nullity, if a party files an application under

(l) [1919] I.L.R. 43 Mad. 313.

(3) [1927] I.L.R. 55 Cal. 96.

(2) [1928] I.L.R. 47 Mad. 288.

(4) [1938] I.L.R. I Cal. 280.

Merla &manna

N al la para ju

and others

V enkatarama

AyyarJ.

M1rla Ramanna

Na//aparaju

and othn-1

Yenkatarama

Ayyar).

section 47 to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper article would be article 181 and not article 166 of the Indian Limitation Act". The decisions in Seshagiri Rao v.

Srinivasa Rao( ) and Rajagopalier v.

Ramanujachariar( ) were again followed in Ma_ We Gyan v. Maung Than Byu(8), wherein it was held that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really "for an order directing the respondent to .deliver property on the ground that there was no valid

sale". We are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by article 181 and not article 166. On the findings of the courts below that the decree in O.S. No. 25 of 1927 properly construed authorised only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the lands which were the subject-matter of that mortgage, the respondents were entitled to apply to the court for delivery of possession of the properties wrongly sold through process of court and delivered to the appellant, and such an application would be governed by article 181.

Then, there is the further question whether applying article 181, the plaint presented on 7-8-1939 was within time under that article. As already stated, 81 acres 58! cents were sold on the 14th and 15th April,

1936. If the starting point of limitation is the date of sale, then the application must be held to be barred, unless the period during which the suit was pending in the court of the District Munsif, Rajahmundry, is deducted under section 14 of the Indian Limitation Act. But if limitation is to be reckoned from the date of dispossession, then the application would clearly be in time. Under article 166, an application to set aside a sale must be presented within 30 days thereof.

(I) [1919] I.L.R. 43 Mad. 313.

(2) (1923] l.L.R. 47 Mad. 288.

(3) A.LR. 1937 Rang. 126.

But if the sale in question was void, and for that reason article 166 becomes inapplicable, then the date of the sale must vanish as the starting point of limitation, as it has no existence in law.' It is not until the purchaser acting under colour of sale interferes with his possession that the person whose properties have been sold is really aggrieved, and what gives him right to apply under article 181 is such interference or dispossession and not the sale. As observed in Ma We

Cyan v. Maung Than Byu(1 ), such an application is really one for an order for redelivery of the properties wrongly taken possession of by the purchaser. If that is the correct position, the right to apply arises by reason of dispossession and not of sale, and the starting point for limitation would be the date of dispossession. It was so held in Chengalraya v. Kollapuri ( 2).

There, the properties of a party to the suit who had been exonerated by the decree were sold in execution of that decree on 8-1-1918 and purchased by the decree-holder.

It was found that he took . actual possession of the properties in 1919.

On 23-11-1921 the representatives in interest of the exonerated defendant commenced proceedings to recover possession of the properties from the decree-holder purchaser on the ground that the sale under which he claimed was void. It was held that the proper article of limitation applicable was article 181, and that time commenced to run under that article from the date not of sale but of actual dispossession, and that the proceedings were accordingly in time. We agree with this decision, and hold that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under article 181, if it was filed within three years of his dispossession.

Therefore, there is no legal impediment to the plaint filed on 7-8-1939 being treated as an application under section 47, on the ground that it is barred by limitation.

The next question for consideration is whether the present suit was filed in a court which had jurisdiction to execute the decree in O.S. No. 25 of 1927.

(1) A.I.R. 1937 Rang. 126

(2) A.I.R. 1930 Mad. 12.

Mfr/a Raman11a

Nllllaparaju

and ot/rns

V enkatarama

AyyarJ.

Mtrla Ramanna

Nallaparaju

and others

Venkatarama

AJ!)'ar J.

That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the court of the Subordinate Judge of Kakinada is subordinate.

Section 38, Civil Procedure Code provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The District Court of East Godavari is neither the court which passed the decree in O.S. No. 25 of 1927 nor the court to which it had been sent for execution.

But it is common ground that when the pre- Godavari, it had jurisdiction over the properties, sent suit was instituted in the District Court, East which are the subject-matter of this suit. It is true that by itself this is not sufficient to make the District Court of East Godavari the court which passed the decree for purpose of section 38, because under section 37, it is only when the court which passed the decree has ceased to have jurisdiction to execute it that the court which has jurisdiction over the subject-matter when the execution application is presented can be considered as the court which passed the decree. And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court.

Viele Seeni Nadan v. Muthuswamy Pillai('), Masrab Khan v.

Debnath Mali( ) and fagannath v. fchharam ( ).

But does it follow from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No. 25 of 1927 passed by the court of the Subordinate Judge, Kakinada ?.

There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subjectmatter of a decree is transferred to another court, that court is also competent to entertain an application for execution of the decree.

Vide Latchman v.

Madan Mohun('), fahar v. Kamini Devi(') and Udit Narayan v. Mathura Prasad('). But in Ramier v. (!) [!9!9] T.L.R. 42 Mad. 82!. F.B.

(2) [!9<2] l.L.R. I Cal. ?89.

13) A.LR. 1925 Born. 414. (ll [1880] l.L.R. 6 Cal. 513

(5) [1900] I.L.R. 28 C,!. 238.

(6) [1908] l.L.R. 35 Cal. 974.

Muthukrishna Ayyar( 2), a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that court alone can entertain in application for execution and not the court to whose jurisdiction the subject-matter has been transferred. This view is supported by the decision in Masrab Khan v. Debnath Mali( ). It is not necessary in this case to decide which of these two views is . correct, because even assuming that the op1mon expressed in Ramier v. Muthukrishna Ayyar( 1 ) is correct, the present case is governed by the principle laid down in Balal(rishnayya v. Linga Rao( 3 ). It was held therein that the court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the. earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. That precisely is the position here. We have held that the allegations in the plaint do raise the question of excessive execution, and it was therefore open to tlte appellant to have . raised the plea that the suit was barred by section 47, and then, there could have been no question of waiver.

We have, it is true, permitted the appellant to raise the contention that the present suit is barred by section 47, and one of the reasons therefor is that the allegations in the plaint are so vague that the appellant might have missed their true import. But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement. We agree with the decision in Balakrishnayya v. Linga Rao(3 ), and hold that the objection to the District Court entertaining an application to execute the decree in 0.S.

No. 25 of 1927 is one that could be waived and not

(I) 1932 I.L.R. 55 Mad. 801. !2) I.L.R. 1942 I Cal. 289.

(3) l.L.R. 1943 Mad. 804.

Merla Ramanno

Nallaparaju and others

Venkatarama

A)!Yar J.

Mala Ramanna

Nallaparaft

and otlurs

Vmkatarama

A.x>"' J.

having been taken in the written statement is not now available to the appellant. There is thus no legal bar to our treating the plaint presented by the respondents on 7-8-1939 as an execution application under section 47, and in the interests of justice, we direct it to be so treated. But this should be on terms. We cannot ignore the fact that it is the gross negligence of the respondents at all stages that has been responsible for all the troubles. They did not appear in the suit, and put forward their rights under Exhibit A.

They intervened at the stage of execution, but their complaint was mainly that the ex parte decree had been obtained by fraud, a plea which has now been negatived. Even in this suit, they did not press the plea on which they have succeeded until they came to the . High Court. Under the circumstances, we think it just that they should be deprived of all claims for mesne profits down to this date.

In the result, treating the plaint as an execution application, we direct that the properties mentioned in schedule A to the plaint be partitioned and the respondents put in possession of 126 acres 33 cents in Kalavacherla village and of 10 acres 12 cents in Nandarada village in proceedings to be taken in execution of this order.

The respondents will be entitled to their share of the net income attributable to 136 acres 45 cents aforesaid from this date down to the date on which they are put in separate possession thereof.

Subject to the modification of the decree of the court below as stated above, this appeal will stand dismissed. The parties will, however, bear their own costs throughout.

Matajog Dobey

MERLA RAMANNA

NALLAPARAJU AND OTHERS

BHAGWATI

B. P. SINHA JJ.

Code of Civil Procedure

s. 47

Limitation Act

District Court of East

(odavari

s. 4

the Code of Civil Procedure

s. 47

s. 47

s. 4

Art. 165

Art. 166

Limitation Act

Nollaparaju

Art. 181

District Court of East Godavari

s. 47

Casela

B. Somayya

K. R. Chaudhury

Naunit Lal

K. S. Krishnaswamy Aiyangar

K. R. Krishnaswamy

VENKATARAMA

AYYAR

Madras High Court

Nandarada

Rangaraju

Kumara

Kumara

Nallapparaju

Achutaramaraju

Kalavacherla

Rangaraju

Merla Agastayya

section 70

High Court, Madras

14th and 15th April, 1936

District Munsif's Court, Rajahmundry

Subordinate Judge of Rajahmundry

Merla Ramanna

NaUaparaju

16th March, 1945

Satyanarayana Rao

bistrict Judge of East Godavari

section 47

Procedure Code

section 47

Civil Procedure Code

Civil Procedure Code

Somayya

section 47

Krishnaswami Iyengar

section 47

rla Ramanna

N allaparaju

Mirta Ramanna

section

47

section 47

Civil Procedure Code

section 47

Civil Prnrcdure Code

section 47

section 47

section 47

Civil Procedure Code

Section 47

section 47

15th December, 1936

Ayyar

article 165

article 166

Limitation Act

article 181

article 165

Civil Procedure Code

article 165

article 166

article 166

section 47

article 166

article 181

Limitation Act

article 181

article 166

article 166

article 181

article 181

B. K. Mukherjea

article 166

Merla

manna

section 47

article 181

article 166

Limitation Act

article 181

article 166

article 181

article 181

14th and 15th April,

section 14

Limitation Act

article 166

article 166

article 181

article 181

article 181

section 47

Nllllaparaju

Mtrla Ramanna

Nallaparaju

Venkatarama

Section 38

Civil Procedure Code

District Court, East

section 38

section 37

High Court of Calcutta

Muthukrishna Ayyar

section 47

section 47

Merla Ramanno

Venkatarama

Mala Ramanna

section 47

Kalavacherla village

Nandarada village