The judgment-debtor is precluded from challenging the sale of inalienable property after the order confirming the sale, and objections to attachment and sale should be raised in the executing court.

Venkatasubba Rao, J.

1. This is a Letters Patent Appeal from the judgment of Krishnan, J. I shall briefly state the facts before discussing the question of law that arises. Perumal was the owner of the property and he mortgaged it to the defendant. It was then an unenfranchised inam. In execution of a money decree obtained against Perumal the property was subsequently sold in Court auction. Even then it was an unenfranchised inam. The plaintiffs vendor became the purchaser at the Court sale.

2. This suit has been instituted to redeem the mortgage in favour of the defendant. The defence is that the sale conveys to the plaintiff no title, the property having been inalienable. The defendant has had to concede that on this hypothesis the mortgage in his favour is also invalid. He, however, relies upon a sale made to him of the property by Perumal subsequent to the enfranchisement of the property.

3. These facts cannot be disputed : first, the property was inalienable on the date of the Court sale and consequently no valid title passed to the plaintiff ; secondly, by reason of the subsequent enfranchisement, Perumal acquired a right which could be transferred and the defendant, haying then purchased the property from the owner, acquired a good title. Krishnan, J. relying on these facts has dismissed the plaintiffs suit. in my opinion, the question is not what are the true facts, but what is the effect of the Court sale; in other words, can Perumal or the defendant who claims through him plead that the property was in fact inalienable on the date of the Court sale ? If Perumal is precluded from pleading that the land was inalienable, the defendant who claims through him is equally barred.

5. It was not disputed before Krishnan, J., that Perumal, the judgment-debtor, was aware of the execution proceedings that culminated in the sale and the argument apparently proceeded on the footing that though he had knowledge, he did not object to the attachment and sale. The plaintiffs learned vakil before us suggested that as a matter of fact Perumal put in a petition objecting to the sale and that his objection was overruled by the executing Court which thereafter ordered the sale of the property. The petition of Perumal and the order made thereon were not relied on in any of the Lower Courts or before Krishnan, J. We did not think it necessary to decide whether this additional evidence should be received or not ; for, in our opinion, it is immaterial whether an objection was put forward which was overruled or whether the judgment-debtor having knowledge of the proceedings refrained from objecting. I therefore proceed to deal with the case on the footing that Perumal had notice of the proceedings and had an opportunity to object to the attachment but did not put forward any objection.

6. The Court sale was held on the assumption that the property could be sold. Is Perumal or his representative, the defendant, now to be permitted to show that this assumption was wrong and that in fact the property was inalienable ? In my opinion there is a preponderance of authority in favour of the position that he ought not to be so permitted.

7. The first case I shall refer to is Sheikh Murullah v. Sheikh Burullah (1930-5) 9 CWN 972 In execution of a decree against the defendant, his property was sold and a stranger became the purchaser. The latter transferred his right to the plaintiff and he brought the suit for possession. The defendant raised the objection that the holding was non-transferable by custom and the sale was therefore bad. Mitra, J. held that the defendant could have objected to the attachment under Section 244 and he not having done so, was precluded from resisting the purchaser after confirmation of the sale. The learned Judge observes : " As between the purchaser and himself (the defendant) the title to the property vested in the purchaser on the confirmation of sale." Mitra, J. lays emphasis on this aspect, namely, whether the judgment-