An executing court can refuse to execute a decree which directs the sale of property whose alienation is prohibited on grounds of public policy, either under the general law or by statute.

OPINION

RAMASWAMI, J. :- (delivering judgment on behalf of himself and

SOMASUNDARAM, J. :- This Full Bench has been constituted on a reference made by one of us in the following circumstances :

2. The disputed property is two cents of land in the heart of Madurai Town and forming part of T. S. No. 1522. It is stated to be Devadhayam land granted for the Kalanji service (supply of betels etc. in a silver or gold cup during palliyarai pooja and Navarathri) in Sri Meenakshi Sundareswarar temple. It is common ground that a valuable building has been constructed on it. We have to point out at the very outset that in the earlier proceedings of O. S. No. 21 of 1950 this character of the land never came to light - vide plaint, written statement, issues and judgment therein. It is only in the subsequent execution stage just before the confirmation of sale that documents have been filed for showing that these two cents are service inam.

3. These two cents of land came into the possession of G.G. Kuppuswami Aiyar under several alienations with which we are not concerned here. G.G. Kuppuswami Aiyar mortgaged the property to the Vasantha Chit fund, the original decree-holder in O. S. No. 21 of 1950, which was a suit to enforce the mortgage. The suit resulted in a decree. The hypotheca was brought to sale. It was put up in auction in E. P. No. 12 of 1956 on 28-1-1957, and the property was purchased by T.S. Krishnan for Rs. 13410. The sale was confirmed after overruling the objections raised by Kuppuswami Ayar and his son in E. A. No. 132 of 1957 filed under the provisions of S. 47 and O. XXI, Rule 90, C.P.C. The present appeal, C.M.A. No. 272 of 1957 is preferred by the son of Kuppuswami Aiyar against that order.

4. Delivery of possession has not yet taken place.

5. The learned District Judge following the Full Bench decision of the Andhra Pradesh High Court in Venkataseshayya v. Virayya 1957-2 Andh WR 137 : (AIR 1958 Andh Pra 1), held that if in the suit or at the execution stage, the question of the alienability of the property is not raised by the judgment debtors, they would be precluded by the rule of constructive res judicata from later on raising that question. Therefore he dismissed the application for setting aside the sale.

6. The controversy arising from the appeal posed an important question of law.

7. That the property in question is Devadayam land and Service Inam granted for the purpose of a particular service in Sri Meenakshi Sundereswarar temple at Madurai, can be assumed for the purpose of this reference as established, though naturally we can make no final pronouncement on it. It is now well settled that lands forming the emoluments of offices of a public nature cannot be alienated by the holder by way of sale, gift or mortgage or sold in execution of a decree against him. This has been recognised as a rule of general law based upon public policy in connection with Inams granted for service in the following cases : Lakshmanaswami Naidu v. Rangamma, ILR 26 Mad 31; Neti Anjanevalu v. Sri Venugopal Rice Mills Ltd., Tenali, 42 Mad LJ 477 : (AIR 1922 Mad 197); Sundararaju Dikshitalu v. Seshadri Dikshitalu, 54 Mad LJ 76 : (AIR 1928 Mad 35); Ramanathan Chetti v. Kalidasa Kavundan, 71 Mad LI 398 : (AIR 1936 Mad 559); Adinarayana Chetti v. Chengiah Chetti, AIR 1937 Mad 918; Ramakrishnamma v. Venkatasubbiah, 68 Mad LJ 46 : (AIR 1935 Mad 252); Lakshmudu v. Ramudu, ILR 1940 Mad 123 : (AIR 1939 Mad 867); and Kotayya v. Ramaswami Subbarayudu, 1956 Andh WR 739 : (AIR 1957 Andh Pra 182). The principle is that if there is dissociation of the office from the emoluments attached thereto, such dissociation impairs the efficiency of the service to be rendered. Therefore, it is held that it is contrary to public policy and such alienations are void.

8. It is well known however that many of these service inam-holders alienate the properties without reference to their obligations and do not set up the inalienability for reasons of their own dur