1. This appeal has been referred to the Full Bench on account of a supposed conflict between the dicta in 1962 KLT. 848 and AIR. 1954 SC. 349. The plaintiffs are the appellants. The suit was to recover possession of the plaint A schedule properties and for other reliefs. The plaint A schedule properties belonged to the tarwad of the plaintiffs and defendants 11 to 16. On the 4th Makaram 1104 the tarwad executed a mortgage in respect of these properties to the father of the 17th defendant. On the basis of that mortgage the 17th defendant obtained a decree in O. S.67/1107 on the file of the District Court, Trichur. The father of defendant 1 to 4, one Varu, took an assignment of that decree and executed it. The properties were brought to sale and purchased by Varu after obtaining the permission of the court for Rs. 7,200/-, and he took delivery of the same in execution in the year 1113 M. E. The decree and the execution proceedings were challenged in the plaint as not binding on the plaintiffs or their tarwad. Several allegations attacking the validity of the decree were made in the plaint, but it is not necessary to go into those details, as the question in this appeal turns upon a narrow point. The plaintiffs also challenged the validity of the execution proceedings on several grounds. For the purpose of this appeal the most material allegation was that the execution sale was void on the ground that the decree holder-auction purchaser did not deposit the balance of the purchase money after setting off the decree amount in accordance with the provisions of 0.21 R.84 and 85. The plaintiffs therefore prayed for a declaration that the decree and the sale in execution were void, and for recovery of possession of the properties on the strength of their title and other incidental reliefs.

2. It may be observed that the 11th defendant, a member of the tarwad, had filed an application to set aside the sale on identical grounds and that was dismissed by the execution court. From that order an appeal was preferred in C. M. A. 12/1121 and that was dismissed on the ground that the application was barred under Art.181 of the Limitation Act. That case is reported in 37 Cochin 541. The present suit has been filed in forma pauper is on 18121952 by a daughter and a grandson of the appellant in C. M. A. 12/1121.

3. The substantial contentions in defence were that the decree was valid and that even if the sale in execution were void on the grounds mentioned in the plaint, a separate suit was not maintainable as the questions raised in the suit related to the execution, discharge or satisfaction of the decree in O. S.67/1107, and that if the suit was treated as an application in execution it was barred by time, having been filed more than three years from the date of delivery of possession of the properties to the decree holder-auction purchaser.

4. The court below upheld the contention that the decree was valid and binding and that the suit for declaration that the execution sale was void, and for recovery of possession of the properties, was not maintainable under S.47 as the questions raised in the suit related to execution, discharge or satisfaction of the decree in O. S.67/1107, and that even if the suit was treated as an application in execution it was barred as more than 3 years have elapsed from the date of the delivery of possession of the properties to the decree holder-auction purchaser in O. S.67/1107. The correctness of the finding of the court below as regards the validity of the decree, was not challenged in this appeal by counsel for the appellant.

5. The only point urged by him was that since the execution sale was a nullity that sale need not be set aside and that S.47 was not a bar to the maintainability of the suit.

6. Ext. P-26 shows that the decree amount in O. S.67/1107 on the date of the execution sale came to Rs.7,079-13-5. The purchase money, as I have stated, was Rs. 7,200/-. After setting off the decree amount aga