The executing court has the jurisdiction to determine the inalienability of the mortgaged property and can refuse to pass a final decree if the property is found to be inalienable on grounds of public policy.

Venkataramana Rao, J.

1. The question raised in this civil revision petition is whether it is open to a party who has been impleaded as the legal representative of the deceased mortgagor defendant to resist the passing of a final decree on the ground that the mortgaged property being an Acharyapurusha service inam is inalienable and the sale of such property would be illegal on grounds of public policy. The lower Court took the view that it can and raised an issue for determination as to whether the property mortgaged is Acharyapurusha service inam and adjourned the matter for the taking of necessary evidence. Mr. Sampath Aiyangar for the mortgagee petitioner contends that the lower Court had no jurisdiction to go into the said question. He urged two points in support of his contention: (i) The lower Court is bound to pass a final decree in accordance with Order 34, Rule 5, Civil P.C., if it is found that payment as directed was not made; and (ii) assuming it can go behind the preliminary decree, it has no jurisdiction to take evidence to find out the nature of the property.

2. Reliance is placed on the recent decision of Burn and Lakshmana Rao, JJ. in Annamalai Chettiar v. Srirangachariar AIR 1937 Mad 134, which reversed the decision of Pandrang Row, J. in Srirangachariar v. Annamalai Chettiar AIR1935Mad647 . The argument of Mr. Sampath Ayyangar can be outlined thus: An executing Court has no jurisdiction to go behind the decree and must execute it as it stands; assuming it can, in cases where public policy is involved, it must ex facie appear from the decree or there must be an admission by the parties that the property is inalienable. This principle is applicable with greater force to mortgage decrees as the Court has no option but to pass a final decree in accordance with the directions of the preliminary decree which settles finally the rights of parties. It is no doubt a well established principle of law that a Court executing the decree cannot go behind it, but the Courts are not agreed as to the exact limits of this rule. The above rule was given effect to in a Full Bench decision of this Court reported in Zamindar of Ettiyapuram v. Chidambaram Chetty AIR 1920 Mad 1019, even in cases of want of territorial jurisdiction. Wallis, C.J. explained the basis of the decision at pages 686 and 687 thus:

The ordinary way of questioning a decree passed without jurisdiction is an appeal or in revision, and if this is forbidden, a Court of first instance cannot in execution do that which the Appellate or Revisional Court is precluded from doing . . . An objection to the jurisdiction is a ground for setting aside the decree and is not one of those questions relating to the execution, discharge or satisfaction of the decree which are required by Section 47 to be dealt with in execution.

3. The Full Bench decision purports to follow the ruling of the Calcutta High Court in Kalipada Sirkar v. Hari Mohan Dalai AIR 1917 Cal 844, but the Calcutta High Court has since relaxed the rule. In Gorachand Haldar v. Prafulla Kumar Roy AIR1925Cal907 the question arose in execution with reference to some of the mortgaged properties being outside the territorial jurisdiction of the Court which passed the decree. There was a reference to the Full Bench in the following terms:

Where a decree having been passed by a Court having no jurisdiction to pass it is void and a nullity, is the executing Court competent to question its validity and refuse to execute it?

4. The answer to the reference was in these terms:

Where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment debtors person, to make the decree , the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction.

5. This view has been since followed in the Calcutta High Court. In Rabindranath v. Jnanendra Mohan AIR1932Cal9 a decree was passed on an award