Mullick, J.:— (after stating the facts set out above, proceeded as follows): It is quite clear that the learned Judge had no jurisdiction to set aside the sale for an irregularity which did not cause any substantial loss; and the decree-holder's application in revision must succeed. Civil Revision no. 393 of 1924, therefore, is allowed with costs.
The learned Judge, however, has decided in the judgment-debtor's favour on a more serious point which is the subject of second appeal no. 182 of 1924.
Disagreeing with the Subordinate Judge he holds that jote no. 43 not being saleable, the whole sale must be set aside. This decision under section 47, Code of Civil Procedure, has the force of a decree as it finally decides a question of right between the parties to the suit and a second appeal lies.
Now it is to be observed that in the mortgage suit at no stage did the mulraiyat or any of his co-sharer defendants take the plea of non-saleability, and in the circumstances I do not see how, in the execution stage, the mulraiyat can object to the sale of the property. The Court cannot refuse to execute the mortgage decree unless there is a clear statutory injunction in that behalf. It is true there can be no estoppel in the presence of an illegality, and the learned Judge points to section 27 of Regulation III of 1872 (the Santal Parganas Settlement Regulation), which runs as follows:
“Clause (1).—No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record-of-rights, and then only to the extent to which such right is so recorded.”
“Clause (2).—No transfer in contravention of sub-section (1) shall be registered, or shall be in any way recognized as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.”
“Clause (3).—If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of sub-section (1) has taken place, he may, in his discretion, evict the transferee and either restore the transferred land to the raiyat or any heirs of the raiyat who has transferred it, or re-settle the land with another raiyat according to the village custom for the disposal of an abandoned holding.”
The record-of-rights states that the mulraiyat is entitled to transfer by a single transaction his entire mulraiyati right in the village including his private holding; but that the successor to a mulraiyat, whether acquiring by inheritance or transfer, is not entitled to enjoy his rights or to perform his duties until he has been recognized by the Sub-divisional Officer. It also states that it is a raiyat's duty to observe whatever orders Government may pass forbidding the transfer, sub-division or subletting of holdings.
What the Government orders are with regard to transfer does not appear in the record-of-rights published in the Santal Parganas Manual of 1912 which is the only material publication produced before us and it has not been shown on what authority the learned Judge finds that the mulraiyat in this case has transgressed the law.
The record-of-rights does state that the rights of a recorded mulraiyat are not subject to partition by gift, transfer, inheritance or otherwise; from this it only follows that a mulraiyat cannot sell or mortgage less than his interest in a mulraiyater jote. In the present case there is nothing to show that he has contravened the law in this respect. Again without the mortgage deed it is impossible to say whether he has mortgaged only an undivided fractional interest or the whole jote as his own, but in either case there would be no evasion of the law. If it is a fact that the whole jote is not his and that some of the other judgment-debtors have an interest therein, then if there is any prohibition by Government against the sale of their shares, the mortgage decree was wrong in directing the sale of the entire undivided holding. The error, however, is not apparent on the face of the record and without further evidence it is impossible to say that the decree was either illegal or without jurisdiction.
But apart from this there is a defect in the learned Judge's proceedings which goes to the root of jurisdiction; for it is clear that it was not open to the learned Judge at all to question the correctness of the mortgage decree.
Assuming that the trial Court has wrongly ordered the sale of the interest of the co-sharers, does section 27 of the Santal Parganas Settlement Regulation authorize any Court that may choose to do so to set aside the decree? I think not. “Any Court”, in sub-section (2) of section 27, means a Court vested with jurisdiction to question the correctness of the decree. The execution Court's powers are derived from section 47 of the Civil Procedure Code, and is my opinion that Court cannot refuse to attach and sell jote no. 43 even if satisfied that the decree was wrong. He was not entitled to enter into any inquiry as to the correctness of the decree or the jurisdiction of the Court which passed it. Here it did not even appear on the face of the decree that it was without jurisdiction. The Court was bound to assume that the decree had been made with jurisdiction and that there were no Government orders prohibiting the sale of the jote. Certainly the trial Court in the mortgage suit would have been justified in declining to sell the property if the prohibition exists; so again would the execution Court if there had been only a simple decree for money; but where the jurisdiction is based on a decree for sale it is not open to the execution Court to refuse to carry out the sale so long as the decree exists in full force and effect. An objection that the property was not saleable could under certain circumstances have been made by the judgment-debtor in the case of a money decree either before or after the sale, and in Durga Charan Mandal v. Kali Prasanna Sarkar it was held that the objection could be made even after confirmation. But in the case of a mortgage decree the objection cannot be taken in an execution proceeding because it is an attack upon the validity of the decree.
Section 60 of the Civil Procedure Code provides that the house of an agriculturist is exempted from attachment and sale in execution of a decree; but it was held in Bhagwan Das v. Hathibhai that where a mortgage decree has been passed for the sale of an agriculturist's house, the execution Court could not refuse to execute the decree notwithstanding the provisions of section 266 of Act X of 1877 which corresponds to section 60 of the present Civil Procedure Code. In Ramdayal v. Narpat Singh, in a second appeal against the mortgage decree itself, the Court gave effect to the exemption and dismissed the claim for the sale of the hypothecated property. In Bholanath v. Mussammat Kishori two of the learned Judges, disagreeing with the third Judge, held that section 60 was only a bar in a proceeding for the execution of a money decree and that a mortgagee who has obtained a decree for the sale of an agriculturist's house is entitled to have it sold in execution. The Court accordingly gave a decree for the sale of the house in second appeal.
These cases illustrate the principle that an execution Court cannot go behind the decree.
On the other hand, in the Raja of Vizianagram v. Dantivada Chellayya it was held that section 5 of the Hereditary Village Officers' Act (Madras Act III of 1895) made it obligatory upon a Court executing a mortgage decree to go behind the decree and to refuse to sell village inam lands though their sale was ordered by the decree. The decision was based upon the rule that prohibitions having some object of public policy in view must be literally and strictly enforced and that the principle of personal estoppel does not apply. The rule may be admitted, but the question is, whether any Court can interfere to put the statute in force except in the course of a properly constituted proceeding over which he has jurisdiction. In this last-mentioned case their Lordships of the Madras High Court held that the execution Court was competent to refuse to sell the inam lands; but with great respect it seems to me that this was giving a right to the execution Court to review the judgment of the trial Court on a question of fact. It follows that if such a right is recognized there is nothing to prevent a conflicting decision in the execution Court both as to the facts and the law on the issue of saleability. Such a result could not possibly have been contemplated.
The language of section 27, clause (2), of the Santal Parganas Settlement Regulation is perhaps more express and peremptory than that of section 60 of the Civil Procedure Code; but the same restriction applies. The enactment certainly prohibits any Court from recognizing a transfer as valid if made in contravention of sub-section (1); but the Court must be engaged in a proceeding in which it has jurisdiction to investigate the legality of the transfer. In other words, the proceeding must be properly constituted and the investigation necessary. In my opinion the Court hearing the appeal from the original decree could have investigated its correctness but not the execution Court. Therefore so long as that decree stood, neither the Subordinate Judge sitting as a Court of execution under section 47, Code of Civil Procedure, nor the District Judge in appeal from him, was competent to question it. The learned District Judge's order, therefore, being without jurisdiction, must be set aside.
The appeal is decreed with costs which will be paid by the judgment-debtor respondents only. The sale will be confirmed.
Ross, J.:— I agree.
Appeal decreed.
Application allowed.