The main legal point established in the judgment is the distinction between a void and voidable sale, and the application of Art.166 of the Limitation Act in determining the limitation for setting aside a court sale.

1. The short point that arises for decision in the Second Appeal is whether the application filed by the 9th defendant to set aside the court sale of item 3 is barred by limitation or not.

2. There is no doubt that the decree, in pursuance of which execution was taken, provided that item 3 should be sold in the last instance. But actually, the item 3 has been sold first.

3. The court sale was on 28-7-1124. The 9th defendant filed on 26-3-1952 the present application for setting aside the sale under Order XXI R.90 and S.47 and 151 of the C P.C. on the ground that the sale was contrary to the directions contained in the decree and as such, void and also on other grounds. The application was opposed by the court-auction-purchaser on the ground that it is barred by limitation. It will be noted that the application for setting aside the sale was filed nearly three years after the sale.

4. According to the 9th defendant, the sale of item 3 being void, no question of limitation arises at all. On the other hand, the auction-purchaser contended that the sale will at the most be only a voidable one and as such will be governed by the provisions of Art.166 of the Limitation Act and that, the application is barred by the law of limitation.

5. The learned District Munsiff, Kottarakkara, held that the sale so held of item 3 was against the provisions of the decree and invalid. In consequence, he held that the said sale is void and as such, no question of limitation arises at all for consideration and in the result he allowed the application.

6. On appeal by the auction-purchaser, the learned Additional District Judge differed from the learned District Munsiff and held that the sale was not void and may be at the most voidable. He held that the application of the 9th defendant was barred by limitation and as such dismissed the same.

7. In Second Appeal before me, the learned counsel for the appellants, Mr. Achutha Varrier contends that the view taken by the learned District Judge is not correct. On the other hand, Mr. Velayudhan Nair, learned counsel for the respondent has contended that the sale is not void and as such, the application filed for setting aside the sale was barred by limitation.

8. Mr. Achutha Varrier has referred me to certain decisions of the various High Courts which deal with the powers of the executing court. But most of these cases only lay down the very well established proposition that an executing court cannot go behind the decree. In some cases, it has been held that a sale in contravention of the provisions in the decree will be considered to be one without jurisdiction. But in all those cases ultimately, the courts have held that it will be a good ground for setting aside the sale. These decisions will not, as such, help the contentions of the learned counsel and as such, I am not referring to them.

9. But a few decisions relied upon by Mr. Achutha Varrier may be noted. He relied in particular on the decisions of the Patna High Court reported in Mohdatunnissa v. Sewak Ram (A.I.R.1933 Patna 161) & Bhan Kumar v. Lachmi Kanta (A.I.R.1941 Patna 566) and also to the decision of a single judge of the Madras High Court in Marugappa v. Chengalvaraya (A. I. R.1944 Mad. 465).

10. In Mohdatannissa v. Sewak Ram (A. I. R.1933 Patna 161), a Division Bench of that High Court held that when once the court passing the mortgage decree, has definitely laid down the order in which the mortgaged properties are to be sold, the executing court cannot ignore the original decree and proceed to sell the properties in a different order in spite of the objections of decreeholder as well as some of the judgment-debtors. I do not think that there can be any quarrel with the principle stated by the learned Judges. There was no question of limitation arising for decision before the learned judges and these observations are made by them while disposing of an appeal against an order made by the lower court there in contravention of the provisio