1. Certain immovable properties belonged to two brothers, Murgapillai and Adiyapada Pillai. On 30th February 1895 Muruga Pillai executed a mortgage hypothecating the properties in favour of the present defendant 1. On the foot of that mortgage the present defendant 1 instituted O.S No. 755 of 1910 against both Muruga Pillai and Adiyapada Pillai. But the decree passed in that suit exonerated the share of Adiyapada Pillai. Subsequently Adiyapada Pillai filed a suit for partition against his brother Muruga Pillai to which suit he made the present defendant 1 also as party defendant. That suit was O.S No. 421 of 1915. The partition suit was compromised and a definite half share in the suit properties was allotted to Adiyapada Pillai, the suit being dismissed against the present defendant. The defendant 1, decree-holder in O.S No. 755 of 1910, proceeded to execute his decree by bringing to sale the entire lands. Adiyapada Pillai naturally intervened and objected and claimed exoneration of his share, namely, the eastern half of S. No. 272 allotted to him by the final decree in the partition suit. Though the partition decree was passed on a compromise between the brothers only and though as far as the present defendant 1 was concerned the order was that the suit be dismissed as against him, yet the Court ordered that Muruga Pillai's western half alone should be sold, and that defendant 1 was not entitled to sell the share of Adiyapada Pillai in execution of the decree in Suit No. 755 of 1910. When such an order was passed by the Court defendant 1 decree-holder in O.S No. 755 of 1910 dropped further proceedings in execution, and had his execution application dismissed on 12th April 1917. Subsequently it would seem that defendant 1 again applied by means of a fresh execution petition to have the entire lands sold in execution of his decree in O.S No. 755 of 1910. The property was sold and he himself became the purchaser under Ex. 4, dated 8th January 1918. In execution of the sale certificate he applied for and obtained delivery of the land including the eastern half of the land: vide delivery receipt Ex. 5, dated 7th September 1918. It is seen with reference to this Ex. 5 that it was only a symbolic delivery and not delivery of actual possession after removing the person in possession. Adiyapada Pillai sold his rights in the eastern portion of the suit lands to the present plaintiff under Ex. A dated 26th June 1919. The suit which gave rise to this second appeal was instituted by the plaintiff as the vendee from Adiyapda Pillai under Ex. A alleging that the defendant obstructed him in July 1919 when he went to take possession of the properties purchased by him.

2. The main plea raised by defendant 1 was that a separate suit does not lie and that all questions relating to excess delivery in execution of the decree in O.S No. 755 of 1910 to which Adiyapada Pillai was a party should have been settled by proceedings taken under Section 47 of the CPC. The learned District Munsif overruled that contention and went into the merits of the plaint allegations, holding that a separate suit lay in the circumstances of this case. On the merits he passed a decree in favour of the plaintiff. Defendant 1 preferred an appeal to the lower appellate Court along with his sons, the other defendants in the case. In the lower appellate Court the question was again raised that the present suit is not maintainable having regard to the provisions of Section 47 of the CPC. The lower appellate Court upheld that contention of the defendant, and I think it was right on that point. Section 47 of the CPC, is clear that all questions relating to execution discharge or satisfaction of a decree should be decided by proceedings under Section 47 of the CPC, and not by a separate suit.

3. The question of excess delivery relates to execution. That has been held by this High Court even in a very early case reported in Muttuvelu Pillai v. Vythilinga Pillai . 5 M.H.C 185.: see also in Kattamma Nachiar v. Bothgurusami Thevar . 6 M.H.C 293. so that it is clear that questions relating to excess execution, if raised by a person who was a party to the suit, should not be raised by a fresh suit but should be decided in execution proceedings only. The lower appellate Court being clearly right in that view, the question arose before, it whether the present suit should be treated under the circumstances as an application filed under S. 47. There were difficulties according to some of the decisions passed prior to the present Code, in so treating the same. To remove such difficulties, specific provision has been made in the present Code by S. 47, Cl. 2, where it is specifically enacted 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 and may, if necessary, order payment of any additional court-fee. The circumstance that a plaint is filed after paying a higher amount of court-fee cannot according to the present Code be a ground for not treating the proceeding as an application under S. 47.

4. The only further question would be whether there is any question ‘of limitation bar applicable to the plaintiff's case. The lower appellate Court held that the application was not barred by limitation, observing that Article 181, Lim. Act, applied to the case and that the starting point of limitation should be taken to be, when the plaintiff was obstructed or disturbed in his possession. It went into the evidence and came to the finding that it was only in 1919 that the plaintiff or Adiyapada Pillai was disturbed in his possession and that the defendant had not been put in physical possession in execution of his sale certificate. The suit having been filed on 23rd November 1921 that is within the period of three years provided by Article 181, Lim. Act, the lower appellate Court decided the question of limitation against the defendants, and thus in the end confirmed the decree of the first Court.

5. Against the decision of the lower appellate Court the defendants have preferred this second appeal.

6. Both the learned advocates who appear in the case are agreed that the question in dispute is one covered by Section 47 of the CPC. I think that the lower appellate Court was right in having treated the plaint as a proceeding under S. 47 in the circumstances of this case. The only remaining question then is that of limitation. It was strenuously argued by the learned advocate for the appellant that the lower appellate Court was wrong in fixing the starting point of limitation in this case. He contended that the words of Article 181, viz., “when the right to apply accrues” should be read without introducing into the article any further words or phrases. According to the learned advocate the right to apply accrued the moment the delivery was effected and delivery was effected under Ex. 5 in favour of his client the auction-purchaser, on 7th September 1918. The article does not say that the starting point is only from the date when the applicant had knowledge of his rights or when he was dispossessed. That being so, the learned advocate argued that this application because the plaint filed in this case should be taken to be application for the present purpose was barred by limitation. He drew my attention to the case reported in Bihari Loll Mitter v. Tanuk Lal Mandar, A.I.R 1926 Pat. 397, and also to the decision of Jackson, J., in Pallayya v. Bhimarazu . A.I.R 1924 Mad. 859.. On behalf of the respondent it was argued by his learned advocate that this question must be decided having regard to the accepted view viz., that excess sale in execution is void. If excess sale is void, he contended that excess delivery also is void as such; and that as it has been held that no suit need be filed to set aside excess sales, it follows that no application need be filed to set aside excess delivery and, it is only when the rights of Adiyapada Pillai or the plaintiff are in any way actually disturbed that their right to take any steps arises and that in this particular case having regard to the concurrent findings of both the lower Courts that the plaintiff's vendor was in possession till 1919 and that the defendant got physical possession only in 1919, the (plaint) application filed in 1921 could not be held to be barred.

7. It seems to me that in such cases we have to keep in mind what exactly is the nature and effect of such excess sales and such excess deliveries.

8. In the first place, the definition of the word ‘judgment-debtor’ according to Code of Civil Procedure is:

“any parson against whom a decree has been passed or an order capable of execution has been made.”

9. Now in this case the plaintiff's vendor was not a person against whom any decree had been passed or order capable of execution had been made. Therefore the Court had no jurisdiction to sell his property in execution of the decree. The sale was thus ultra vires and void, being in excess of the Court's jurisdiction, the jurisdiction of the Court being limited to execute the decree against Muruga Pillai, against whom only the decree had been passed. It does not follow from what I have said that if in execution proceedings in connexion with a suit to which a person was a party anything happened which affected his rights, that he need not proceed under S. 47. The words of S. 47 are wider and under that section even persons against whom no decrees have been passed but who are parties to the suit, have to come under S. 47, if any of their rights be infringed in execution proceedings by the decree-holder. The procedure ordinarily available by way of suits is substituted by one of applying to the executing Court by means of a petition. This is the only effect of S. 47 of the Code. The legal rights of the parties have to be considered and adjusted upon.

10. But it does not also follow that such persons are judgment-debtors within the definition of the Code of Civil Procedure.

11. Now Rajagopala Ayyar v. Ramanuja Chariar . A.I.R 1924 Mad. 431, is a decision of a Full Bench of this Court which held that when notice required by O. 21, R. 22 of the CPC, was not given, but the sale took place, that such a sale was void. Being void the sale need not be set aside, and as such sale need not be set aside, the period of limitation (comparatively shorter), prescribed by Article 166 would not apply, so that in cases where sales are held to be void, appropriate relief could be obtained by parties to the suit by proceeding under S. 47, the period of limitation being not the period prescribed for the setting aside of sales but general period of three years prescribed by Article 181. If excess sale is void and no notice need be taken of the same by any parties to the suit, until their rights are actually infringed, I fail to see how excess execution could have any higher effect. In this particular case it is found that there was no notice to the plaintiff's vendor either in connexion with the second application for execution which resulted in the excess sale, or in connexion with the delivery evidenced by Ex. 5. Exhibit 5, I think evidences only is symbolic delivery, under O. 21, R. 96. The lower appellate Court says with reference to this that.

“the delivery which defendant 1 obtained under Ex. 5 was a was formal one evidently.”

12. If I am right in my view about the effect of this excess delivery, the plaintiff's vendor need not have taken any steps simply because there was this excess delivery in execution. He was not bound to apply to have the order relating to excess delivery set aside. If he could ignore that order as he could have ignored the excess sale itself, what then is the real act by which he is aggrieved; in other words, when does the right to apply accrue to him within the meaning of Article 181, Lim. Act. So long as he was in possession it did not matter to him what orders of excess sales or excess deliveries were passed behind his back. I think the lower appellate Court was right in its finding that Article 181 applied and that the application was not barred.

13. I wish to notice the two cases that were cited to me by the learned advocate for the appellants. The first case reported in A.I.R 1926 Pat. 397 was a case where an application was made professedly to set aside excess sale. The Court, as I understand the judgment, held that as the prayer was to set aside the sale, the application ought to have been made within the period prescribed Article 168. I do not understand the learned Judges to lay down anything more than that. I do not think that the case affords any guidance to me with reference to the question that I have now to decide. The decision of Jackson, J., reported in Pallayya v. Bhimarazu, deals with Article 181, Lim. Act. His Lordship came to the conclusion in that case that the application was not barred by Article 181. His Lordship had before him an application for restitution made after the expiration of three years from the date, as I take it, of the sale. It was argued that the applicant was entitled to deduct the time prescribed by Section 18 of the Lim. Act, if a case of fraud was made out. His Lordship found on the facts that a case of fraud had been made out and that the applicant was entitled to deduct that period. Deducting that period it was found that the application before the Court was within three years, even if the starting point was taken to be the date of sale; and accordingly the application was not barred.

14. His Lordship had not to decide the exact point that I have to decide in this case viz., what the starting point of limitation in such a case would be. What the starting point in that case was having regard to the circumstances was evidently assumed and not disputed by the parties; and the only question that required the decision of the Court was whether the period covered by Section 18 of the Lim. Act, could be deducted; and his Lordship held—and if I may say so respectfully—very properly that the petitioner was entitled to such a deduction. I do not see how this decision is against the view, that I am now inclined to adopt as regards the starting point of limitation in the present case. Being thus of opinion that the starting point of limitation in the case before me was only when the plaintiff's vendor or the plaintiff was disturbed in his possession, I think the lower appellate Court was right in the view it took on the question of limitation. This view received support from the observations of the Full Bench of this Court in the case reported in Rajagopala Ayyar v. Ramanuja Chariar, where the decision in Seshagiri Rao v. Srinivasa Rao . [1920] 43 Mad. 313, by Seshagiri Iyer and Moore, JJ., was followed. The learned advocate for the appellant at one stage of his argument seemed to contend that in this case limitation began even from the date of the Court sale (Ex. 4 dated 8th January 1918) and not merely from the date of the delivery proceedings evidenced by Ex. 5. But as I have held that the sale in question is excess sale not authorized by the decree and is consequently void and that it need not be set aside, time will not begin to run from that event. For the reasons I have given, if I am right in my view that excess sales are void and need not be set aside by persons who are not judgment-debtors, the circumstance that the sale took place in 1918 would not in any way prejudice the plaintiff-respondent in this particular case. Finally there is also the finding that in spite of the order passed in his first execution application that he was not entitled to proceed against the shares of the property allotted to Adiyapada Pillai, the decree-holder, the present appellant, again applied by a fresh execution application some time later for the same relief and for the sale of the whole of the property and that, without giving any notice to Adiyappa Pillai had the whole property sold and himself became the purchaser; and again without any notice to Adiyapada Pillai he managed to get symbolical delivery behind the back of the latter. Adiyapada Pillai and his vendee the present plaintiff (respondent) came to know about the fraudulent acts of the appellant only in 1919, when the appellant interfered with their possession; till then they were in possession and were paying revenue on the property. In the circumstances though Section 18 of the Lim. Act, has not been specifically referred to in the plaint, the case would really seem to come under that section and the period before 1919 could not be counted against the respondent. From the facts found in this case, such an inference could legitimately be drawn in the particular circumstances of this case and though ordinarily facts bringing a case under S. 18 have to be specifically pleaded. On all these grounds I dismiss the second appeal with costs.

P.R.S/V.S

15. Appeal dismissed.