judgement:
Appeal No. 183 of 1952.
Appeal by special leave from the Judgment and Decree dated the 16th day of February 1950 of the Madras High Court in Second Appeal No. 1826 of 1945 from Original Decree dated the 16th March, 1945, of the Court of District Judge, East Godavari at Rajahmundry in A.S. No. 32 of 1943 arising out of the Decree dated the 31st October, 1942, of the Court of Sub Judge, Rajahmundry in Suit No. 17 of 1940 and O.S. No. 39 of 1939.
B. Somayya (K. R. Chaudhury and Naunit Lal, with him) for the appellant.
K. section Krishnaswamy Aiyangar, (K. R. Krishnaswamy, with him) for respondents Nos.
I to 4. 1955.
November 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the concurrent judgments of the courts below, and granted a decree 941 in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future.
All these lands measuring 543 acres 65 cents were purchased by five co sharers on 5 6 1888 under two sale deeds, Exhibits P and P 1.
One of these shares of the extent of about 218 acres was, at the material dates, held in common by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents.
On 19 8 1908 Kumara executed a simple mortgage, Exhibit Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Achutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada.
On 19 7 1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs. 2,000 over all the 218 acres belonging to them in favour of Achutaramaraju.
On 4 6 1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Exhibit Q 1 for Rs. 2,500 in favour of Achutaramaraju.
On 14 12 1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held in full ownership as co sharer, and also the mortgage right which he held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exhibits Q, A and Q 1.
On 29 8 1920 Kumara sold the 81 acres 45 cents belonging to him and comprised in the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as per Exhibit G, and thereby the two deeds, Exhibits Q and Q 1 became completely discharged and Exhibit A to the extent of the half share of Kumara.
The position then was that Achutaramaraju became the owner of 81 acres 45 cents out of the properties mortgaged under Exhibit A, and continued to be a simple mortgagee as regards the rest of them to the extent of half the amount due therein.
By virtue of section 70 of the Transfer of 942 Property Act, the sale under Exhibit G would enure for the benefit of the mortgagee, Merla Agastayya, being an accession to the interest of his mortgagor.
On 20 1 1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S. No. 25 of 1927 on the file of the court of the Subordinate Judge of Kakinada to recover the amount due thereon by sale of the hypotheca.
Achutaramaraju, the mortgagor, and the members of his family were defendants I to 4 in that suit.
Kumara was impleaded as the 14th defendant and Rangaraju and his son as defendants 15 and 16.
In the plaint, it was alleged that the properties comprised in the mortgage deed, Exhibit C, consisted of the properties belonging to the mortgagors in full ownership as co sharers and also of the mortgage right under Exhibits Q, A and Q 1.
Then there was an allegation that defendants I to 4 had themselves purchased the mortgaged properties "towards discharge of the first defendant 's mortgage debts".
As a statement of fact, this was not accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the re maining properties continued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A.
There were the further allegations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors in title in respect of the properties which were mortgaged under Exhibits Q, A and Q 1.
Then there was the general prayer for the sale of the properties.
The mortgagors, defendants 1 to 4, entered into a compromise with the plaintiff, while defendants 14 to 16 remained expert.
On 31 1 1931 the suit was decreed in terms of the compromise as against defendants I to 4 and ex parte as against defendants 14 to 16, and a final decree was passed on 6 11 1932.
On 23 8 1934 the decree holder filed E.P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Exhibit A. Defendants 15 and 16 then intervened, and filed an objection to 943 their being sold on the ground that the mortgage had been discharged in 1923, and that the exparte decree against them had been obtained fraudulently.
This application was rejected by the Subordinate Judge on 26 8 1935, and an appeal against this order to the High Court, Madras was also dismissed on 1 9 1938.
Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81 acres 86 1/2 cents belonged to Rangaraju, were brought to sale on the 14th and 15th April 1936, and purchased by the decree holder himself.
The sale was confirmed on 26 6 1936, and possession taken on 15 12 1936.
But before possession was taken, on 14 12 1936 Rangaraju and his sons instituted O.S. No. 268 of 1936 in the District Munsif 's court, Rajahmundry for a declaration that the decree in O.S. No. 25 of 1927 had been obtained fraudulently, and that the decree holder was not entitled to execute the decree as against their pro perties.
An objection was taken to the jurisdiction of the court of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper court.
Thereupon, they instituted on 7 8 1939 the present suit, O.S. No. 39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in 0.
section No. 25 of 1927 was obtained by suppressing service of summons, and was therefore void and could not affect their title to 136 acres 45 cents which were mortgaged under Exhibit A.
The suit was transferred to the court of the Subordinate Judge of Rajahmundry, and was numbered as O.S. No. 79 of 1946.
In his written statement, the appellant denied that the decree in O.S. No. 25 of 1927 was obtained fraudulently, and contended that the present suit was barred by limitation.
He also pleaded that as he had purchased the properties in execution of the decree and obtained possession thereof, the suit which was one for a bare declaration that the decree was void and inexecutable was not maintainable.
It must be mentioned that while 81 acres 86 1/3 cents of land belonging to Rangaraju and his sons had been sold on the 14th and 15th April 1936, their remaining properties of the 944 extent of 54 acres 58 1/2 cents were sold after the insti tution of O.S. No. 268 of 1936 in the court of the District Munsif, Rajahmundry.
In view of the objections aforesaid, the plaintiffs amended the plaint by adding a prayer that 136 acres 45 cents out of the total of 543 acres 65 cents in schedule A and belonging to them might be partitioned and put in their separate possession.
The Subordinate Judge of Rajahmundry dismissed the suit on the ground that no fraud had been established, and that the suit was barred by limitation in so far as it sought to set aside the decree on the ground of fraud.
The plaintiffs appealed against this judgment to the District Court of East Godavari, which by its judgment dated 16th March 1945 affirmed the decree of the Subordinate Judge.
The plaintiffs then preferred Second Appeal No. 1826 in the High Court, Madras.
There, for the first time the contention was pressed that the decree in O.S. No. 25 of 1927 on its true construction directed a sale only of the mortgage rights which Achutaramaraju had over the A schedule properties, and that the sale of the properties themselves in execution of that decree was in excess of what the decree bad directed., and was therefore void, and that the plaintiffs were accordingly entitled to recover possession of those properties ignoring the sale.
Satyanarayana Rao, J. who heard the appeal, construed the plaint as sufficiently raising this question and issue (2) (b) as covering this contention, and accordingly directed the District Judge to return a finding on the question as to whether the sale of the properties was warranted by the terms of the decree.
The District Judge of East Godavari to whom this issue was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A. and that the sale of the properties themselves was not in accordance with the decree.
But he further held that this was an objection relating to the execution of the decree which could be agitated only before the executing court, and that a separate suit with reference to that matter was barred under section 47, Civil 945 Procedure Code.
On this finding, the second appeal came up for final disposal before Satyanarayana Rao, J. who agreed with the District Judge that the sale of the properties was not authorised by the decree, and was therefore void.
But he declined to entertain the objection that the suit was barred by section 47, Civil Procedure Code, on the ground that it had not been taken in the written statement, and was a new contention preferred for the first time at the stage of second appeal.
In the result,, he granted a decree for partition and delivery of 136 acres 45 cents out of the properties mentioned in schedule A to the plaintiffs, and mesne profits, past and future.
Against this judgment, the defendant prefers the present appeal, and insists that the suit is liable to be dismissed as barred by section 47, Civil Procedure Code.
On behalf of the appellant, it was contended by Mr. Somayya that the question whether having regard to section 47 the suit was maintainable was argued before the learned Judge before he called for a finding, and that it ought to have been therefore considered on the merits, and that, in any event, as it was a pure question of law and went to the root of the matter, it ought to have been entertained.
On behalf of the respondents, Mr. Krishnaswami Iyengar vehemently contends that as the objection to the maintainability of the suit based on section 47 was not taken in the written statement, the learned Judge had a discretion whether he should permit the point to be raised for the first time in second appeal or not, and that we should not interfere with the exercise of that discretion in special appeal.
The basis on which the suit has now been decreed is that the decree in 0.
section No. 25 of 1927 properly construed directed only a sale of mortgage rights under Exhibit A and not of the properties, but it must be conceded that this point does not distinctly emerge on the face of the plaint.
It is true that there are allegations therein which might be read as comprehending that question, but they are vague and elusive, and what is more, this contention was not argued either in the court of the 946 Subordinate Judge of Rajahmundry or in the District Court of East Godavari, and it is only in second appeal that the question appears to have been first thought of in this form.
Though we are not prepared to say that the allegations in the plaint are not.
sufficient to cover this point, we are of the opinion that they are so obscure that it is possible that the appellant might have missed their true import, and omitted to plead in answer thereto that the suit was barred by section 47.
Apart from this, it is to be noted that this point does not involve any fresh investigation of facts.
Indeed, when the matter was before the District Judge in pursuance of the order of the High Court calling for a finding, counsel on both sides understood it as involving a decision on this point as well, and the argument proceeded on the footing that it was a pure question of law involving no further enquiry on facts.
We have therefore permitted the appellant to raise this contention.
Mr. Somayya for the appellant does not challenge the finding of the District Court confirmed by the High Court that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A, but he contends that the sale in execution of that decree of not merely the mortgage rights under Exhibit A but of the properties themselves was excessive execution against which the judgment debtor was entitled to obtain relief by application to the execution court, and that a separate suit with reference thereto would be barred under section 47, Civil Procedure Code.
It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under section 47, Civil Procedure Code and not in a separate suit.
In J. Marret vs Md. K. Shirazi & Sons(1) the facts were that an order was made by the execution court directing, contrary to the terms of the decree, payment of a certain fund to the decree holder.
A separate suit (1) A.I.R. 1930 P.C. 86. 947 having been instituted by the judgment debtor for recovery of the amount on the ground that the payment was not in accordance with the decree, it was held by the Privy Council that the action was barred under section 47.
A case directly in point is Venkatachalapathy Aiyen vs Perumal Aiyen(1).
There, the suit was to enforce a mortgage which related both to properties held in ownership by the mortgagor and mortgage rights held by him.
In execution of the decree passed therein, the properties themselves and not merely the mortgage rights were sold.
The judgment debtor then sued for a declaration that what was sold was only the mortgage right and to recover possession of the properties.
It was held that such a suit was barred under section 47.
Vide also the decisions in Biru Mahata vs Shyama Charan Khawas(2), Abdul Karim vs Islamunnissa Bibi(3) and Lakshmi narayan vs Laduram(4).
The position is, in our opinion, too well settled to be open to argument, and it must accordingly be held that the present suit is barred under section 47, Civil Procedure Code.
That, however, does not conclude the matter.
Section 47, clause (2) enacts that "the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding. . .
Under this provision, this Court has the power to treat the plaint presented on 7 8 1939 as an application under section 47 provided that on that date an application for the relief claimed was not barred by limitation, and provided further that the court in which it was filed was competent to execute the decree.
On the question of limitation, the relevant dates are the 14th and 15th, April 1936, when 81 acres 861 cents belonging to the plaintiffs were sold, and 15th December 1936 when possession was taken thereof through court.
As regards the remaining properties, the exact date on which they were, sold does not appear on the record, but it is sufficient for the present purpose that it was subsequent to the institution of O.S. No. 268 of 1936 on 2,0.4 (1) (2) Cal.
(3) All. 339.
(4) [1931] A.I.R. 1932 Bom.
120 948 the file of the District Munsif 's court, Rajahmundry, which was on 14 12 1936.
Now, the point for determination is whether the plaint was barred by limitation either under article 165 or article 166 of the Indian Limitation Act, if it is treated as an execution application presented.
on 7 8 1939, or whether it was in time under article 181.
Under article 165, an application by a person dispossessed of immovable properties and disputing the right of the decree holder or purchaser at an execution,sale to be put in possession must be filed within 30 days of dispossession.
If this is the article applicable to the present proceedings, then it must be held that the plaint treated as an execution application was filed out of time.
In Vachali Rohini vs Kombi Aliassab(1), a Full Bench of the Madras High Court has held, dissenting from the view previously ex pressed in Ratnam Aiyar vs Krishna Doss Vital DSS(2) and following Abdul Karim vs Mt.
Is amunnissa Bibi (3), that this article applies only to applications for being restored to possession by persons other than judgment debtors, as under Order XXI, rule 100, Civil Procedure Code and that applications by judgmentdebtors claiming relief on the ground that their properties had been erroneously taken in execution of the decree are not governed by it.
This view was approved and followed in Rasul vs Amina (4) and Bahir Das vs Girish Chandra(1).
We are of the opinion that the law has been correctly laid down in the above decisions, and that in accordance therewith, the present proceedings are not barred by article 165.
Coming next to article 166, an application by a judgment debtor to set aside a sale in execution of a decree has, under that article, to be filed within 30 days of the sale.
If the present proceedings are governed by this article, there can be no question that they are barred by limitation.
But then, there is abundant authority that article 166 applies only when the sale is one which has under the law to be 2,0.4 (1) Mad.
(2) Mad.
(3) All. 339 (4) Bom.
(5) [1922) A.I.R. 1923 Cal.
949 set aside as for example, under Order XXI, rules 8990 and 91, but that it has no application when the sale is inoperative and void.
In Seshagiri Rao vs Srinivasa Rao(1), the appellant was a party to the suit, but the decree had exonerated him from liability.
In execution of the decree, his three fourths ' share in the properties was sold on 26 1 1910 and purchased by the decree holder and possession delivered to him on 16 12 1910.
The appellant then filed a suit on 25 7 1911 to set aside the sale on the ground that it was in contravention of the decree and therefore void.
An objection having been taken by the defendant that the suit was barred under section 47, the court, while upholding the same, held that the plaint could be treated as an application under that section if it was in time as an execution application, and the question arose for decision whether the application was governed by article 166 or article 181 of the Indian Limitation Act.
It was held that as the sale was a nullity, it had not to be set aside under the law, and therefore the article applicable was article 181 and not article 166.
This statement of the law was ap proved by a Full Bench of the Madras High Court in Rajagopalier vs Ramanujachariar.
A similar decision was given in, Manmothanath Ghose vs Lachmi Devi(1), wherein it was observed by Page, J. that the sale being void need not have been set aside at all, and the order to be passed was "in substance merely a declaration that the sale was null and of no effect".
The question whether an application by a judgmentdebtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void was governed by article 166 or article 181 came up directly for consideration in Nirode Kali Roy vs Harendra Nath(1).
In holding that the application was governed by article 181, B. K. Mukherjea, J., (as he then was) observed that "article 166 must be confined to cases where the sale is voidable only and not void when the execution sale is a nullity, if a party files an application under (1) Mad. 813.
(2) [ Mad. 288.
(3) Cal 96.
(4) I.L.R. , 950 section 47 to have it pronounced a nullity or for setting it aside for safety 's sake to avoid future difficulties, the proper article would be article 181 and not article 166 of the Indian Limitation Act".
The decisions in Seshagiri Rao vs Srinivasa Rao(1) and Rajagopalier vs Ramanujachariar(2) were again followed in Ma We Gyan vs Maung Than Byu(3), wherein it was held that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really "for an order directing the respondent to deliver property on the ground that there was no valid sale".
We are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, an application by a judgment debtor to have it declared void and for appropriate reliefs is governed by article 181 and not article 166.
On the findings of the courts below that the decree in O.S. No. 25 of 1927 properly construed authorised only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the lands which were the subject matter of that mortgage, the respondents were entitled to apply to the court for delivery of possession of the properties wrongly sold through process of court and delivered to the appellant, and such an application would be governed by article 181.
Then, there is the further question whether applying article 181, the plaint presented on 7 8 1939 was within time under that article.
As already stated, 81 acres 581 cents were sold on the 14th and 15th April 1936.
If the starting point of limitation is the date of sale, then the application must be held to be barred, unless the period during which the suit was pending in the court of the District Munsif, Rajahmundry, is deducted under section 14 of the Indian Limitation Act.
But if limitation is to be reckoned from the date of dispossession, then the application would clearly be in time.
Under article 166, an application to set aside a sale must be presented within 30 days thereof.
(1) Mad. 313.
(2) (1923] I.L.R. 47 Mad.
(3) A.I.R. 1937 Rang.
951 But if the sale in question was void, and for that reason article 166 becomes inapplicable, then the date of the sale must vanish as the starting point of limitation, as it has no existence in law.
It is not until the purchaser acting under colour of sale interferes with his possession that the person whose properties have been sold is really aggrieved, and what gives him right to apply under article 181 is such interference or dispossession and not the sale.
As observed in Ma We Gyan vs Maung Than Byu(1), such an application is really one for an order for redelivery of the properties wrongly taken possession of by the purchaser.
If that is the correct position, the right to apply arises by reason of dispossession and not of sale, and the starting point for limitation would be the date of dispossession.
It was so held in Chengalraya vs Kollapuri(2).
There, the properties of a party to the suit who had been exonerated by the decree were sold in execution of that decree on 8 1 1918 and purchased by the decree holder.
It was found that lie took actual possession of the properties in 1919.
On 23 11 1921 the representatives in interest of the exonerated defendant commenced proceedings to recover possession ,of the properties from the decree holder purchaser on the ground that the sale under which he claimed was void.
It was held that the proper article of limitation applicable was article 181, and that time commenced to run under that article from the date not of sale but of actual dispossession, and that the proceedings were accordingly in time.
We agree with this decision, and hold that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under article 181, if it was filed within three years of his dispossession.
Therefore, there is no legal impediment to the plaint filed on 7 8 1939 being treated as an application under section 47, on the ground that it is barred by limitation.
The next question for consideration is whether the present suit was filed in a court which had jurisdiction to execute the decree in O. section No. 25 of 1927.
(1) A.I.R. 1937 Rang.
(2) A.I.R. 1930 mad.
12. 952 That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the court of the Subordinate Judge of Kakinada is subordinate.
Section 38, Civil Procedure Code provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution.
The District Court of East Godavari is neither the court which passed the decree in O.S. No. 25 of 1927 nor the court to which it had been sent for execution.
But it is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject matter of this suit.
It is true that by itself this is not sufficient to make the District Court of East Godavari the court which passed the decree for purpose of section 38, because under section 37, it is only when the court which passed the decree has ceased to have jurisdiction to execute it that the court which has jurisdiction over the subject matter when the execution application is presented can be considered as the court which passed the decree.
And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court.
Vide Seeni Nadan vs Muthuswamy Pillai(1) Masrab Khan vs Debnath Mali(1) and Jagannath vs Ichharam(3).
But does it follow from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No. 25 of 1927 passed by the court of the Subordinate Judge, Kakinada? There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subjectmatter of a decree is transferred to another court, that court is also competent to entertain an application for execution of the decree.
Vide Latchman vs Madan Mohun (4), Jahar vs Kamini Devi(1) and Udit Narayan vs Mathura Prasad(6).
But in Ramier vs 2,0.3 (1) Mad. 821.
F.B. (2) I.L.R. (3) A.1 R. (4) Cal.
(5) (6) Cal.
974. 953 Muthukrishna Ayyar(1), a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject matter has been transferred.
This view is supported by the decision in Masrab Khan vs Debnath Mali(1).
It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in Ramier vs Muthukrishna Ayyar(1) is correct, the present case is governed by the principle laid down in Balakrishnayya vs Linga Rao(1).
It was held therein that the court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution appli cation with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings.
That precisely is the position here.
We have held that the allegations in the plaint do raise the question of excessive execution, and it was therefore open to the appellant to have raised the plea that the suit was barred by section 47, and then, there could have been no question of waiver.
We have, it is true, permitted the appellant to raise the contention that the present suit is barred by section 47, and one of the reasons therefor is that the allegations in the plaint are so vague that the appellant might have missed their true import.
But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement.
We agree with the decision in Balakrishnayya vs Linga Rao(,), and hold that the objection to the District Court enter taining an application to execute the decree in 0.
section No. 25 of 1927 is one that could be waived and not (1) Mad. 801.
(2) I.L.R. (3) I.L.R. 954 having been taken in the written statement is not now available to the appellant.
There is thus no legal bar to our treating the plaint presented by the respondents on 7 8 1939 as an execution application under section 47, and in the interests of justice, we direct it to be so treated.
But this should be on terms.
We cannot ignore the fact that it is the gross negligence of the respondents at all stages that has been responsible for all the troubles.
They did not appear in the suit, and put forward their rights under Exhibit A.
They intervened at the stage of execution, but their complaint was mainly that the ex parte decree had been obtained by fraud, a plea which has now been negatived.
Even in this suit.
they did not press the plea on which they have succeeded until they came to the High Court.
Under the circumstances, we think it just that they should be dep rived of all claims for mesne profits down to this date.
In the result, treating the plaint as I an execution application, we direct that the properties mentioned in schedule A to the plaint be partitioned and the respondents put in possession of 126 acres 33 cents in Kalavacherla village and of 10 acres 12 cents in Nandarada village in proceedings to be taken in execution of this order.
The respondents will be entitled to their share of the net income attributable to 136 acres 45 cents aforesaid from this date down to the date on which they are put in separate possession thereof.
Subject to the modification of the decree of the court below as stated above, this appeal will stand dismissed.
The parties will, however, bear their own costs throughout.

summary/full:
The appellant was the assignee of a mortgage dated 14 12 1911, executed by A, which comprised.
lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19 7 1909.
The appellant instituted a suit in the court of the Subordinate Judge of Kakinada, for the recovery of the amount due on the mortgage, dated 14 12 1911, and prayed for sale of the hypotheca.
The respondents were impleaded as defendants but did not appear.
The suit was decreed ex parte, and in execution of the decree, the properties of the respondents, mortgaged to A on 19 7 1909, were brought to sale, and purchased by the decree holder.
The respondents then instituted the present suit in the District Court of East Godavari which then bad jurisdiction over the properties in suit, for a declaration that the decree obtained by the appellant was fraudulent and inoperative and could not affect their title.
The plaint was later on amended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their share.
The trial Judge dismissed the suit and the District Court in appeal affirmed his decision.
Before the High Court in second appeal it was contended for the first time that the decree in question did not direct a sale of the mortgaged properties but a sale of the mort gagee 's rights under the mortgage deed dated 19 7 1909 and as such the sale of the properties was void.
The High Court having called for a finding from the District Court as to what was sold, it was 939 found by that Court that the decree bad really directed a sale of the mortgagee 's rights and not of the properties mortgaged and that there was excessive execution.
It was, however, of opinion that the point should have been taken before the executing court and the suit in so far as it claimed relief on the basis of excessive execution was barred under section 47 of the Code of Civil Procedure.
The High Court declined to entertain the objection that the suit was barred under section 47 as it had not been taken in the written statement and was raised for the first time in second appeal, and decreed the respondent 's suit.
It was contended for the appellant that the High Court should have entertained the objection and held that the suit was so barred.
Held, that the appellant should be permitted to raise the contention.
The point relating to excessive execution had never been specifically raised except before the High Court and the allegations in the plaint were vague and obscure.
It is a pure question of law which requires no further investigation of facts and was understood and debated as such by the parties before the District Court.
That it was well settled that the question whether an execution sale was in excess of the decree and, therefore, not warranted by it could be raised as between the parties only by an application under section 47 of the Code before the executing court and not by a separate suit.
J. Marret vs Md. K. Shirazi & Sons (A.I.R. 1930 P. C. 86), Venkatachalapathy Aiyen vs Perumal Aiyen ([1912] M.W.N. 44), Biru Mohata vs Shyania Charan Khowas ([1895] I.L.R. , Abdul Karim vs Islamunnissa Bibi ([1916] I.L.R. 38 All. 339) and Lakshminarayan vs Laduram ([1931] A.I.R. , approved.
That the court, however, had the power to treat the plaint in the suit as an application under section 47 subject to any objection as to limitation or jurisdiction.
That the application was not barred under article 165 as it ap plied only to applications for restoration to possession by persons other than judgment debtors and bad no application to the present case.
Vachali Bohini vs Kombi Aliassan '([1919] I.L.R. 42 Mad. 753), Batnam Aiyar vs Krishna Doss Vital Doss ([1897] I.L.R. , Basul vs Amina ([1922] I.L.R. and Bahir Das vs Girish Chandra ([1922] A.I.R. 1923 Cal.
287), approved.
Nor could article 166 apply since it had application only where the sale was voidable and not void and had to be set aside.
That the article applicable to a case of a void sale such as the present was article 181 of the Indian Limitation Act.
Seshagiri Rao vs Srinivasa Rao ([1919] I. , Bajagopalier vs Bamanujachariar ([1923] I.L.R. 47 Mad. 288), Manmothanoth Ghose vs Lachmi Devi ([1927] I.L.R. 55 Cal.
96), Nirode Kali Boy vs Harendra Nath (I.L.R. [1938] 1 Cal. 280), and 119 940 Md We Gyan vs Maung Than Byu (A.I.R. 1937 Rang.
126), ap proved.
That the starting point of limitation for an application under article 181 would be the date of dispossession by the purchaser and not the date of the void sale which had no existence in law and the plaint in the present suit, treated as an application, having been filed ,within 3 years of such dispossession was in time.
Chengalraya vs Kollapuri (A.I.R. , approved.
That the District Court of East Godavari to whose jurisdiction the properties had been transferred before the present suit was instituted had by reason of such transfer acquired an inherent jurisdiction over them and if it entertained an application for execution with reference to them such action was no more than an irregular assumption of jurisdiction and no objection to jurisdiction having been taken by the appellant at the earliest opportunity he must be deemed to have waived it and, consequently, there was no legal bar to treating the plaint as an execution application under section 47 of the Code.
Balakrishnayya vs Linga Bao, (I.L.R. , applied.
Case law discussed.


judgement:
ivil Appeal No. 432 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 4 10 1974 of the Rajasthan High Court in D. B, Civil Special Appeal No. 134 of 1973).
L. M. Singhvi, K.B. Rohtagi, section K. Dhingra, Vijay, K. Jain and M.M. Kashyap, for the appellant.
Mrs. Shyamla Papu, R.N. Sachthey and Girish Chandra, for respondents.
The Judgment of the Court was delivered by RAY, C.J.
In this matter leave was granted on 30 March, 1972.
Leave was confined to the question whether Union of India is a necessary party.
Leave was granted because it was contended that there were decisions to support the appellant 's contention, that the Union of India is not a necessary party.
We gave leave to settle this question.
410 The appellant applied under Article 226 in the High Court of Rajasthan.
The appellant was an employee of the Northern Railway.
He was removed from service with effect from, 2 January 1969.
His appeal against the order of removal was rejected by the General Manager.
The appellant felt aggrieved and filed the application under Article 226.
The trial court rejected the application on the ground that the Union of India was not impleaded.
On appeal the Division Bench affirmed the decision of the trial court and held after referring to two decisions of this Court that the Union of India is a necessary party.
Counsel for the appellant contended that the General Manager is the authority to hear these matters regarding the removal, and, therefore, that is the appropriate party.
Reliance was placed in support of the contention on the decision Hari Vishnu Karnath vs Ahmad Syed Isak & Ors.(1).
That was a case relating to an Election Petition.
The contention was advanced that the Union of India was a necessary party because the Election Commission is required to transmit copies of order of the Tribunal to the Speaker of the House and to publish the same in the Gazette.
The Nagpur High Court rejected the contention that the Union was a necessary party on that ground.
This decision can by no stretch of imagination be of any aid to the appellant in the present case.
Counsel for the appellant relied on the decision of the Punjab High Court in Observer Publications Pvt. Ltd. vs Railway Board, Ministry of Railways, Government of India, New Delhi(2).
The petitioner in that case made an applica tion under Article 226 to question the validity of the ban imposed by the Railway Board on the news weekly "Indian Observer".
At page 421 of the report the question of compe tency of the petition was discussed.
The High Court said that it was accepted by both parties that the Railway Board was acting under a "notification issued in this behalf ' and the Railway Board .was thus invested with all the powers of the Central Government.
The High Court held that it was not necessary in that situation for the petitioner in that case to implead the Union Government and it could not be contend ed that the petition should fail on that ground.
There is no discussion on the question now canvassed here.
This decision is also of no aid to the appellant for the reasons indicated now.
It cannot be disputed that the appellant was a servant of the Union.
It is equally indisputable that any order of removal is removal from service of the Union.
The appellant challenged that order.
Any order which can be passed by any Court would have to be enforced against the Union.
The General Manager or any other authority acting in the Railway administration is as much a servant of the Union as the appellant was in the present case.
(1) A.I.R. 1954 Nag.
(2) 411 The Union of India represents the Railway administra tion.
The Union carries administration through different servants.
These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal.
It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union.
Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party.
The petition was rightly rejected by the High Court.
The appeal fails and is dismissed.
Parties will pay and bear their own costs.
P.H.P. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
The appellant, an employee of the Northern Railway was removed from service.
His appeal against the order of removal was rejected by the General Manager.
The appellant feeling aggrieved filed a writ petition under article 226.
in the writ petition, the General Manager was joined as a respondent but the Union of India was not impleaded.
On appeal, the Division Bench confirmed the decision of the single Judge.
The counsel for the appellant contended that the General Manager is the authority to hear the matters regarding the removal and, therefore, he is the proper authority.
Dismissing the appeal by Special Leave, HELD: The appellant was servant of the Union.
The order of removal is removal from the service of the Union.
Any order of a court would have to be enforced against the Union.
The General Manager or any other authority acting in the Railway AdminiStration is as much a servant of the Union as the appellant was in the present case.
The Union of India represents the Railway Administration.
The Union carries administration through different servants.
Any order setting aside the removal would fasten liability on the Union of India and not on any servant of the Union.
There fore, the Union of India is a necessary party.
[410G H, 411A B] Hari Vishnu Kamnath vs Ahmad Syed Isak & Ors., A.I.R. 1954 Nagpur 166 and Observer Publications P. Ltd. vs Railway Board, Ministry of Railways, Govt.
of India, New Delhi , distinguished.


judgement:
ivil Appeals Nos.
1987. 1988 of 1976.
(Appeals by Special Leave from the Judgment and Order dated the 25 3 1975 of the Punjab and Haryana High Court in Civil Writ Petn.
1228 & 1229 of 1975).
G.L. Singh, in CA 1988/76 with Hardev Singh, B. Datta and N.S. Sodhi, for the appellants.
Niren De, Attorney General with Devan Chetan Das, Adv.
General, Prem Malhotra and R.N. Sachthey, for respondents Nos. 1 & 2.
Anand Swarup, and Mrs. section Bhandare, for respondent No. 3. 362 The Judgment of the Court was delivered by RAY, C.J.
These appeals are by special leave against the judgment dated 25 March, 1975 of the Punjab and Haryana High Court dismissing the writ petitions.
The appellants in the writ petitions asked for a manda mus directing Respondents No. 1 and 2 to appoint the appel lants to the posts of Additional District and Sessions Judge.
The appellants also asked for a mandamus or an appropriate writ quashing the orders of Respondents No. 1 and 2 whereby the High Court was informed that the Govern ment was not prepared to appoint the appellants to the post of Additional District and Sessions Judge.
Respondent No. 1 is the State of Haryana.
Respondent No. 2 is the Chief Minister of Haryana.
Respondent No. 3 is the High Court of Punjab and Haryana.
The High Court dismissed the petitions on the ground that the appellants had no locus standi to file the peti tions.
The reason given by the High Court is that the appel lants were not appointed and they had no right to be ap pointed.
They had also no right to know why they were not appointed.
The High Court by letter dated 19 February, 1972 invited applications from eligible members of the Bar to fill up two vacancies in the quota of direct recruits from the Bar in the Haryana Superior Judicial Service.
The High Court called for interview 9 candidates on 18 October, 1972.
The High Court thereafter recommended to the Haryana Government the names of the appellants for appointment as District/Additional District & Sessions Judges.
After 27 months the Government reacted the recommendation of the High Court.
Thereupon the appellants filed writ petitions challenging the order of rejection and asked for mandamus for appointment.
There is a letter dated 8 September, 1972 from the Chief Secretary to the Government of Haryana to the Registrar of the High Court.
In that letter the Government took excep tion to the inviting of applications from members of the Bar without the High Court having first obtained the approval of the Government for that purpose.
The letter also stated that in the past two occasions the High Court obtained the approval of the State Government before inviting applica tion.
The High Court rightly dismissed the petitions.
It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty 363 to do something or to abstain from doing something (See Halsbury 's Laws of England 4th Ed.
I, paragraph 122; State of Haryana vs Subash Chander Marwaha & Ors.(1) Jasbhai Motibhai Desai vs Roshan Kumar Haji Bashir Ahmed & Ors.
(2) and Ferris Extraordinary Legal Remedies paragraph 198.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court.
The Governor is not bound to act on the advice of the High Court.
The High Court recommends the names of persons for appointment.
If the names are recommended by the High Court it is not obli gatory on the Governor to accept the recommendation.
Counsel for the appellants relied on the decisions of this Court in Chandra Mohan vs State of Uttar Pradesh & Ors.(3); Chandramouleshwar Prasad vs Patna High Court & Ors(4) and A. Panduranga Rao vs State of Andhra Pradesh & ORS.(5) in SUppOrt of tWO contentions.
First, the Governor should accept the recommendations made by the High Court.
Second, if the Governor will not accept the recommendations he should give reasons for not accepting the recommenda tions.
None of the decisions supports the contentions.
In these three cases the scope and content of Article 233 was examined.
This Court has held that the Constitu tion contemplates consultation of the Governor with the High Court inasmuch as the High Court is in a position to express views on the judicial work of persons who are recommended for appointment to the posts of District Judges.
The High Court knows the merits and demerits of persons who will be promoted from the service to the post.
The High Court interviews persons who will be appointed by direct recruit ment.
The High Court in those circumstances will select candidates for promotion and direct recruitment and send their names to the Government.
This Court has also held that the consultation of the Governor with the High Court does not mean that the Governor must aceept whatever advice or recommendation is given by the High Court.
Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons, selected for promotion and direct recruitment.
In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to the Government to choose a candidate for appOintment by direct recruitment or by promotion unless and until his name is recommended by the High Court.
In Panduranga Rao 's case (supra) there is an observation that the Government could tell the High Court its reasons for not accepting (1) ; (2) [19761 3 S.C.R. 58.
(3) (4) [19701 2 S.C.R. 666.
(5) ; 364 the recommendations of the High Court in regard to certain persons.
The observation in Panduranga Rao 's case (supra) was made in the facts and circumstances of that case and in particular the controversial correspondence.
In the present case the Government pointed out that the High Court had not written to the Government about the proposed appointments before issuing advertisements there for.
In any event, after the Government communicated to the High Court that the recommendations were not accepted a new situation developed.
The Government asked the High Court to issue advertisements and to invite applications for appointment to the posts.
The High Court accepted that position and acted upon it.
The High Court issued the advertisements.
The attitude of the High Court has been peculiar.
When the High Court decided to ask for fresh applications the High Court accepted the position that the original recom mendations which had been made by the High Court were not accepted by the State Government and yet the High Court supported before this Court the appellant 's case by pleading for the "candidature" of the appellants.
The High Court should not take a partisan view by supporting the candida ture of any person.
We were a little surprised that the High Court supported the appellants.
This is not proper particularly when the High Court dismissed the writ peti tions of the appellants.
For the foregoing reasons the appeals are dismissed.
There will be no order as to costs.
M.R. Appeals dis missed.

summary/full:
The Haryana High Court invited applications and interviewed candidates for filling up vacancies in the quota of direct recruits from the bar, in the Haryana Superior Judicial Service.
The names of the appellants were recommended to the State Government who rejected them and asked the High Court to invite application again.
Accepting the position, the High Court issued the advertisements.
The appellants filed petitions against the order rejecting their names and asked for mandamus for appointment.
The same were dismissed by the High Court on the ground that the appellants had no locus standi.
Dismissing the appeals, the Court, HELD: (1) There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
A person can be said to be aggrieved only when he is denied a legal right by some one who has legal duty to do something or to abstain from doing something.
[362G H, 363A B] State of Haryana vs Subash Chander Marwaha & Ors. ; ; Jasbhai Motibhai Desai vs Roshan Kumar Haji Bashir Ahmed & Ors. ; ; Halsbury 's Laws of England 4th Ed.
I, pargraph 122 and Ferris Extra ordi nary Legal Remedies, paragraph 198, applied.
(2) The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court though the consulta tion does not mean that the Governor must accept whatever advice or recommendation is given by the High Court.
Article 233 only requires that the Governor should obtain from the High Court its views on the merits and demerits of per sons, selected for promotion and direct recruitment.[363A B. F G] Chandra Mohan vs State of Uttar Pradesh & Ors. ; Chandramouleshwar Prasad vs Patna High Court & Ors. ; and A. Panduranga Rao vs State of Andhra Pradesh & Ors. ; referred to.


judgement:
l Appeal Nos.
1349 1350/76.
Appeals by Special Leave from the Judgment and Decree dated the 12th October 1976 of the Madras High Court in Writ Petition Nos.
5881 and 5884 of 1975.
V.P. Raman, Addl.
Sol, General of lndia, (Mrs.) N. G, Krishna Iyengar, Shri Narain, K.J. ' John, D.N. Mishra for the Appellant.
F.S. Nariman, M. N. Rangachari, A.R. Ramanathan, Jayaraman,M.M.L. Srivastava and A.T.M. Sarapath for Respond ent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The short ,question, involving a point of construction of section 68 F(1D), has been raised by the Additional Solicitor General in these appeals by Special Leave.
The respondent was a stage carriage operator whose two permits ,were to expire in January and.
March 1976.
In the usual course and in compliance with section 58.
of the (for short, 'The Act ') he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under part IV A had been published.
This fulfilled the require ments of the proviso to section 68 F(1D) and entitled the appel lant to renewal for the limited period stated in the said proviso.
But the State withdrew the draft scheme for some technical reasons and republished it in July 1975, after the appellant 's permit had expired.
Applying the prohibition contained in section 68 F(1D) the Regional Transport Authority (for short the 'R.T.A. ') rejected the prayer for renewal.
However, the High Court set aside that order and directed the grant of renewal, on a certain view of the section which the Additional Solicitor General contends goes beyond the limits of the plain words used.
The aggrieved State ap peals.
While we are satisfied that on the peculiar facts.
of this case the respondent can sustain the permits the legal position canvassed by the appellant appears to be correct.
At the time the respondent 's permit expired a draft scheme had already been published but the approved scheme had not been published.
Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso.
The fact that the draft scheme was later withdrawn cannot affect the right to a renewal.
We, therefore, hold that the renewal of permit shall remain to the extent contemplated in the proviso to section 68 F(1D).
Before we consider the legal question we may read section 68 F(1D). "(1D) Save as otherwise provided in sub sectiOn (1A) or sub section (1G), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68 (2 of any scheme and the date of publication of the approved or modified scheme, in favour of 391 any person for any class or road transport service in relation to an area or route or portion thereof covered by such scheme.
Provided that where the period of opera tion of a permit in relation to any area, route, or portion thereof specified in a scheme published under Section 68 C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of Seetion 68 D." Three propositions plainly emerge.
No permit or renewal, except to the extent expressly saved by section 68 F(ID), can be granted by the R.T.A. during the period between the date of publication of any scheme and the date of publication of the approved scheme.
(2) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso.
This special provision cannot be stretched, on the ground of possible anomalies or unjust consequences, to cover permits expiring even before the publication of the draft scheme.
Where the language is plain, interpretation cannot take the shape of addition or interstitial legislation.
(3) A rider to proposition No. 2 has to be added.
If a permit holder whose permit is about to expire, diligently does, in the normal course, all that he need and all that he can, that is to say, apply for renewal before 120 days, in the manner laid down in section 58 of the Act, he sets in motion the legal machinery for the grant of renewal which must ordinarily culminate.
in renewal within 120 days.
The fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the applica tion for renewal.
In such cases the R.T.A. has to act promptly and if the application for renewal is in conformity with the law it has to consider it and grant or reject according to merit.
If, for reasons beyond the control of the applicant, the renewal process gets delayed or pro longed he cannot be penalised.
Renewal is a legal process, not the final act.
Save in this category of cases, all other permits which have expired before the draft scheme is published, suffer the ban of section 68 F(1D).
However, no permit can ensure beyond the time of the publication of the approved scheme.
This saves cases of bona fide applications for renewal of permits, not calculated to thwart a scheme, and helps the travelling public during the interregnum when the scheme is under scrutiny.
The wider proposition accept ed by the High Court that all permits which have expired before the draft scheme is published can be renewal does not appear to be correct and does not have our approval.
With this declaration of the law we dismiss the appeals.
No order as to costs.
P.H.P. Appeals dismissed.

summary/full:
The respondent was Stage Carriage Operator whose two permits were to expire in January and March 1976.
In the usual course and in compliance with section 58 of the , he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under A had been pub lished.
The State withdrew the draft scheme under A for some technical reasons and republished in July 1975, after the appellants ' permits had expired.
Section 68F(1D) provides that no permit shall be granted or renewal during the period intervening between the date of publication under section 68C of any scheme and the date of publication of the approved or modified scheme.
The proviso to the said sec tion provides that if a permit expires after the publication of the scheme such permit may be renewed for a limited period but the renewed permit shall cease to be effective on the publication of the scheme under section 68D(3).
Applying the prohibition contained in section 68F(1D) the Regional Transport Authority rejected the prayer for renewal.
The High Court set aside that order directed the grant of the renewal.
Dismissing the appeals, HELD: 1.
At the time the respondents ' permit expired a draft scheme had already been published but the approved scheme had not been, published.
Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso.
The fact that the draft scheme was later withdrawn ca.not affect the rights to a renewal.
Renewal of the permit however would be to the extent contem plated by section 68F(1D).
[390G H] 2.
(a) No permit or renewal except to the extent ex pressly saved by section 68F(1D) can be granted by the Regional Transport Authority during the period between the date of publication of any scheme and the date of publi cation of the approved scheme.
[391C] (b) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso.
The special provi sion contained in that proviso cannot be stretched on the ground of possible anomalies or unjust consequences to cover permits expiring even before the publication of the draft scheme.
Where language is plain the interpretation cannot take the shape of addition or interstitial legislation.
[391C D] 3.
If a permit holder whose permit is about to expire diligently does in the normal course, all that he needs and all that he can, that is to say, if he sets in motion the legal machinery for the grant of renewal as laid down in section 58, the fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the application for renewal.
If for reasons beyond the control of the applicant the renewal process gets delayed or prolonged he.
cannot be penalised.
Renewal is a legal process and not the final act.
Save in this category of cases all other permits which have expired before the draft scheme is published, suffer the ban of section 68F(1D).
However, no permit can ensure beyond the time of the publication of the approved scheme.
[391D F] 390


judgement:
Appeal No. 128 of 1976.
(From the Judgment and Order dated 10 12 1975 of the Allahabad High Court in Election Petition No. 35/74).
G.N. Dikshit, M.V. Goswami, S.V. Goswami and Ambrish Kumar, for the Appellant.
L.M. Shinghvi, Pratnod Swarup and S.K. Verma, for Re spondent No. 1.
The Judgment of the Court was delivered by GUPTA, J.
The appellant was one of the eight contest ants from Mat Constituency No. 365 in District Mathura in the Uttar Pradesh Legislative Assembly elections held in 1974.
February 24 and 26, 1974 were the dates when poll was taken and the result was declared on February 28, 1974.
The first respondent who was sponsored by Bhartiya Kranti Dal, it will be referred to as B.D. hereinafter, was elected securing 33565 votes.
The appellant who came next was a nominee of the Congress party; he polled 20731 votes, 12,834 votes less than the successful candidate.
On April 14, 1974 the appellant presented an election petition in the Allaha bad High Court calling in question the election of the first respondent alleging that he was guilty of adopting corrupt practice within the meaning of sub sections (2), (3) and (3A) of section 123 of the Representation of the People Act, 1951.
The first respondent in his written statement denied all the allegations.
The High Court held that the election petitioner had failed to prove the charge of corrupt prac tice alleged against the successful candidate and dismissed the election petition.
The election petitioner challenges the correctness of the decision in this appeal under section 116A of the Representation of the People Act, 1951.
Certain principles governing election disputes are now well settled.
One such principle is that proceedings arising out of election petitions are quasi criminal in character and the allegations made in the petition must be proved beyond reasonable doubt. 'Another is that in an appeal under section 116A of the Representation of the People Act, 1951 this Court will not interfere with the findings of fact recorded by the trial court except for very strong and cogent reasons.
A third is that it is unsafe in an election case to accept oral evidence at its face value without looking for assurance from some surer circumstances or unimpeachable documents.
[see Rahim Khan vs Khurshid Ahmed ; (656)].
Of the issues framed upon the pleading of the parties, issues 1, 2, 3 and 4 only are relevant for the purposes of the present appeal.
These issues are as follows: (1) Whether the respondent No. 1, his agents, workers and supporters, with his consent, promoted feeling of hatred between different classes of the citizens of India, particularly between fats and Thakurs of the Constituency on the one side and other Castes and 414 communities on the other, for furtherance of the prospects of his election and thereby committed corrupt practice as defined in section 123 (3 A) of the Act ? (2) Whether the respondent No. 1, his agents workers and supporters, with his consent, promoted caste feeling and appealed to the voters to vote or refrain from voting on the basis of caste and community for furtherance of the prospects of his election and thereby committed corrupt practice as defined in section 123(3) of the Act? (3) Whether the respondent No. 1, his agents and workers, with his consent, directly or indirectly interfered with free exercise of electoral rights of the voters and committed corrupt practice of undue influence as defined in section 123(2) of the Act? (4) Whether the respondent No. 1, his agents and workers, with his consent, committed corrupt practice of bribery for inducing Muslim voters to vote for the respondent No. 1, by paying several thousands of rupees for construction of a school building and a mosque, as alleged in para 13(i), (ii) and (IV) of the petition ? The first two issues are interconnected The allegations relating to these issues are based on three pamphlets, Exhibits P. and P. 22, and oral evidence of meet ings where speeches were delivered appealing to voters on the ground of caste and attempting to promote hatred between different castes.
There is no reference, however, to these pamphlets in the election petition.
Of the pamphlets, exhibits P. 20 and P. 22 contain an appeal to all the resi dents of the constituency to vote for the first respondent, and the High Court rightly held that these two pamphlets cannot be called objectionable.
Exhibits P. 21 appeals to the voters not to vote for outsiders such as, the appellant but to one who belonged to the constituency like the first respondent.
It is difficult to say that this is an appeal on the ground of caste or community.
But it is not neces sary to pursue this matter further because there is no evidence to connect the first respondent with this pamphlet and, as the High Court has found it is not "proved as to at whose instance this pamphlet was printed or distributed".
The oral evidence on these two issues seeks to prove that meetings were held at three villages, Bajna, Neemgaon and Surir Kalan where speeches were made asking the votes to vote on the basis of caste and community and attempting to promote feelings of enmity between different castes and communities in the constituency.
At Bajna two meetings are said to have been held on February 5, 1974, one at 12.30 P.M. at the canal inspection house and the other at 8 P.M. at the local B.K.D. office.
P.W. 6 Ganga Sahai, P.W. 8 Gandalal, and P.W. 22 Jaipal Singh are the witnesses who were examined by the 415 election petitioner to prove this allegation.
From the evidence of P.W. 8 it does not appear that any appeal was made to the voters on the ground of caste or community in either of the two meetings.
P.W. 6 and P.W. 22 wanted the court to believe that though they had heard offending speeches being delivered at the meetings, they did not report the matter to anyone earlier but disclosed what they heard for the first time in court.
If the High Court found their.
testimony unbelievable, we do not think any exception can be taken to it.
The High Court also.
found that neither P.W. 8 nor P.W. 22 was a disinterested witness, P.W. 8 being an active member of the Congress and P.W. 22 was a polling agent of the appellant.
At Neemgaon a meeting is alleged to have been held on February 19, 1974 at 12 noon in the primary school premises.
Of the two witnesses who speak about this meeting, P.W. 16 Lotan appears to have admitted on cross examination that he had not attended the meeting and P.W. 15 Raghubir says, like P.Ws. 6 and 22, that what he heard in the meeting he was disclosing for the first time in court.
The High Court further finds that P.W. 15 was a man in the confidence of the appellant and P.W. 16 was admittedly a "man of Congress".
If in these circumstances the High Court refused to rely on the evidence of these two witnesses, no interfer ence is called for.
The meeting at Surir Kalan is said to have been held at 2 P.M. on the Ramlila platform in the village.
P.W. 4 Harpal Singh and P.W. 5 Badan Singh are the two witnesses for the petitioner as to what happened at this meeting.
From the testimony of P.W. 4 Harpal Singh it seems extremely unlikely that he was present at the meeting.
P.W. 4 is the Head Master of a junior high school.
The school was open on that day.
The schools hours were from 10 A.M. to 4 P.M.
The witness says that he was able to attend the meeting as it was held during the "interval period".
He admits that there are eight periods of forty minutes duration each and the interval is after the fourth period for about forty five minutes.
It is dear therefore that he could not possibly attend the meeting at 2 P.M.
The witness however attempts to prove his presence at the meeting by saying that the meeting started at about 1 P.M., thus contradicting his earlier statement.
The attempt to shift the time makes.
his evidence more suspect.
He also states that he does not know who ultimately won the election.
This apparent unconcern suggesting that he was an impartial witness which is hardly believable marks him out as thoroughly unreliable.
The other witness P.W. 5 Badan Singh says that the meeting was held at 2 P.M.
According to him a pamphlet (Exhibit A) was distrib uted at the meeting.
This pamphlet which contains the description "Decision of Kashatriya Mahasabha" contains an appeal to all the members of the Kashatriya caste to attend the meeting to be held on February 8, at 2 P.M. at Surir Kalan.
The pamphlet does not disclose the .name of the place where it was printed.
There is no evidence to connect it with the first respondent.
There is also no mention of this pamphlet in the election petition.
P.W. 5 does not make any secret that he was opposed to Chandan Singh being elect ed a member of the assembly.
Further, he admits that he did not complain of what happened at the meeting to the authori ties or to the petitioner.
If the High 416 Court did not find it possible to rely on P.W. 4 and P.W. 5, we do not think any legitimate grievance can be made.
We therefore find no reason to interfere with the findings recorded by the High Court on issues 1 and 2 that no corrupt practice within the meaning of section 123(3A) or section 123(3) has been proved against the first respondent.
Issue No. 3 relates to the alleged undue influence exercised by the successful candidate or with his consent by his agents and workers within the meaning of section 123(2) of the Act.
The allegations relating to this issue are contained in paragraph 12 of the election petition and the particulars are in schedule III and IX thereto.
The evi dence adduced on this issue falls into three categories; (1) evidence of witnesses who speak about the threats at the meetings held in support of the first respondent, (2) wit nesses who speak about the actual interference and (3 ) circumstantial evidence of a corroborative nature.
As re gards the first category, these witnesses have been found unreliable by the High Court while dealing with issues Nos. 1 and 2.
No further reference therefore need be made to their evidence.
As regards the second category of witnesses who speak of actual interference by the agents and workers of the first respondent, the High Court after a detailed examination of the evidence adduced found that many of these witnesses were interested witnesses and that their testimony did not inspire confidence.
No presiding officer of the polling stations where such undue influence is alleged to have been used has been examined.
One of the witnesses examined by the election petitioner, P.W. 37 Rajendra Kumar Pathak, who was Sector Magistrate in Neemgaon which includes five polling stations says that he was making a continuous round of the polling stations staying for about 15 minutes at each and that whenever any complaint was made to him about any difficulty felt by the voters in the matter of the free exercise of their right to vote, he saw that the cause for complaint was removed.
His evidence is that he did not receive any complaint about anyone being prevented from casting his vote.
He adds that instructions were given to the Sector Magistrates by the Government that voters should be allowed to cast their votes freely; no Sector Magistrate was examined by the election petitioner to prove that this was not done.
The High Court therefore did not place any reliance, and in our view rightly, on these witnesses.
The circumstantial evidence which is claimed as corroborative of the oral evidence on this issue consists of certain let ters, namely Exhibits P.7, P.8, P.9, P. 10, and P.14 Exhib its P.7 and P.8 are two letters sent to the appellant by P.W. 14 Habura and P.W. 29 Brij Mohan Bhardwaj respectively complaining about the various irregularities at the polling stations.
On a scrutiny of their testimony the High Court found both of them unreliable witnesses and was of the view that these two letters were brought into existence for the purpose of this case after the result of the election had been declared.
Exhibit P.9 is a copy of a letter dated February 23, 1974 addressed to the Superintendent of Police, Mathura.
by the District Magistrate, Mathura.
The copy was proved by P.W. 30 Was ud din Quareshi who was a Stenographer to the District Magistrate at the relevant time.
The High Court doubted the authenticity of this copy as the date, February 23 appearing on the letter was admittedly not in the hand 417 writing of the District Magistrate nor of the witness.
Exhibit 14 is another letter dated February 23, 1974 ad dressed to the District Magistrate, Mathura, by the appel lant.
In this letter the petitioner expressed his general apprehension about the irregularities likely to be committed at some polling stations on the day of poll and requested the District Magistrate to.
make necessary arrangements to prevent the same.
Exhibit P. 10 dated February 25, 1974 was also addressed to the District Magistrate Mathura by the petitioner.
This letter of course contains reference to a number of specific cases of irregularities in certain poll ing stations.
The oral evidence adduced to prove these irregularities, we have found already, is not creditworthy.
That the election petitioner did not examine any of the Sector Magistrates within whose jurisdiction such irregular ities had taken place has already been mentioned.
The only Sector Magistrate examined on behalf of the election peti tioner, P.W. 37 Rajendra Kumar Pathak, does not support the petitioner 's case.
Having considered the two letters Exhibits P. 14 and P. 10 the High Court observed: "If the two letters are read and consid ered together an inference may well be drawn that the former was sent as a precautionary measure advance to give support to the latter one with a view to create some sort of an evidence in case an election petition was necessitated to be filed." These letters put in evidence to corroborate the oral testi mony on the issue of undue influence have themselves no intrinsic merit and are far from reliable and therefore do not advance the petitioner 's case any further than what the oral testimony does.
We therefore affirm the finding of the High Court on issue No. 3 that the petitioner has failed to prove the allegation of undue influence.
This leaves only issue No. 4 concerning the allegation of bribery.
This is the issue which was pressed before us as the main ground in support of the appeal.
The allegations relating to the corrupt practice of bribery are contained in paragraph 13(ii) and (iv) of the election petition and the particulars are set out in schedule X thereto.
Paragraphs 13(ii) and (iv) state: "13.
That the material facts relating to corrupt practice of bribery committed by respondent No. 1, his workers and agents with his consent are given hereinafter.
(i) * * * (ii) That Sri Chandan Singh in order to get the support of the Muslim voters of village Naujhil offered a bribe Rs.1200/ ostensibly for the erection of the building for Islamia school to Sri Aijaz Hussain, Ida and Idris The order was made to induce the Muslim voters to vote for respondent No. 1.
(iii) * * * (iv) That village Bishambara is also a Muslim dominated village in which there are about 2000 Muslim voters belonging to Meo community.
Respondent No. 1 paid a sum of Rs. 3000/ to the Pradhan of the said village Sri Niamat 418 Khan, for inducing the voters of Meo community to vote in his favour.
The said amount was paid for constructing a mosque for use of this community of this village.
Full particulars of this corrupt practices are given in Sched ule X to this petition.
" The allegations are denied in paragraph 13 of the written statement.
Before turning to the evidence on this issue it is necessary to dispose of a contention raised in the High Court and also before us that the allegations must be taken to have been admitted by the first respondent in view of the vague evasive denial given by him in his written statement.
This is how the allegations have been denied in the written statement.
That the averments made in para graph 13 of the petition . are vague, absurd, wrong and baseless.
No person can be stopped in donating certain amount in public institution or the charitable one.
Donation to an institution does not amount to bribery.
The construction of the part 6 indicate igno rance of the petitioner who is not aware in spite the legal advice.
The alleged allega tion of bribery is denied in toto and is liable to be dismissed.
13(ii) That the averments made in para l3(ii) are wrong, baseless, hence denied.
The same being repetition of foregoing sub clause (i), no need of saying much whatever is said in the previous paragraph (i).
13(iii) * * * 13(ii) That the averments made in para 13(ii) are wrong, false and baseless as if the same is denied.
The schedule enclosed marked Annexure X is general in nature and wrong, hence denied and the petition is liable to be dismissed.
" In paragraph 13(iii) of the written statement the first respondent refers to the contents in schedule X of the election petition as "too vague and incorrect, false and baseless".
Counsel for the appellant contended that the denial amounted to this only that donation to a public or charitable institution could not constitute bribery.
We think that a correct and complete reading of paragraph 13 of the written statement the construction put on it on behalf of the appellant would not be justified.
It cannot be overlooked that the allegation of bribery is also denied ' 'in toto" and as false and baseless.
The additional con tention that donation to public or charitable institutions could not amount to bribery appears to be a legal plea asserting that even on the statements made in paragraph 13 of the election petition the allegation of bribery was not sustainable.
The case of bribery rests on two incidents, one relating to payment of Rs. 1200/ to the Muslim voters in village Naujhil for the reconstruction of a Muslim school in that village and the other relating to the payment of Rs. 3000/ to the Pradhan of village Bishambara, which is a Muslim dominated village, for the construction of a mosque in the 419 village.
The allegation regarding the payment of Rs. 1200/ for Islamia school in Naujhil is sought to be proved by P.W.1 Alia Noor, who has a motor cycle repairing shop, P.W. 2 Chandra Pal Sharma, P.W. 3 Ashraf Ali, P.W. 7 Fiaz Khan, P.W. 17 Kadhera and some correspondence that passed between some of these witnesses.
What is alleged to have happened is like this.
Near about midnight between the 23rd and the 24th February, 1974, the first respondent Chandan Singh along with Chatur Singh and several others drove in a jeep to Naujhil at a place where about 200 Muslims were sitting around a fire.
Some from the crowd went upto the jeep, had a talk with Chandan Singh and told him that whoever would donate money for Islamia school, the Muslim votes would be cast in his favour, Chandan Singh Offered to pay and gave twelve currency notes of Rs. 100/ each to Chatur Singh who made them over to one Ida who is said to be the president of the school.
P.W. 1 Alla Noor, P.W. 3 Ashraf Ali and P.W. 7 Fiaz Khan are witnesses to this inci dent.
About half an hour later, two persons named Nanhey and Habib informed P.W. 2 Chandra Pal Sharma, who was the pradhan of village Naujhil, of the incident.
On being sum moned the appellant arrived there within a few minutes and Nanhey and Habib repeated the story in his presence.
At the instance of the appellant the Station Officer, Naujhil, was also summoned there, but he declined to take any step.
The appellant then came to the place visited by the first re spondent earlier and remonstrated with the Muslims crowd still present there for having accepted the money from the first respondent.
Certain letters were produced on behalf of the appellant to strengthen the oral evidence relating to the incident.
Exhibit P.2 appears to be a notice given by Fiaz Khan, who is a member of the school committee, to Ida accusing him of not utilising for the school the money taken by him from the first respondent, asking him to take early steps in the matter, and warning him that in default action would be taken against him.
Exhibit P.I is a letter written by P.W.3 Ashraf Ali, who was a teacher of the school, to P.W. 1 All Noor saying that he had taken the sum of Rs. 1200/from Ida in the presence of witnesses and pur chased some building material for the school.
This letter bears no date.
Exhibit P.5 is another letter sent by P.W. 1 Alla Noor to P.W. 7 Fiaz Khan assuring him that the sum of Rs. 1200/ taken from the first respondent would be utilised for the benefit of the school.
The High Court has disbe lieved the entire story finding that neither the witnesses were believable nor the letters reliable.
The story of the midnight visit of the first respondent doling out money to a crowd of Muslim voters who happened to be present would strike anyone as ridiculous and we agree with the High Court that it cannot be true.
Besides, neither Ida who is made to appear as a central figure in the dispute over the money, nor Nanhey or Habib who conveyed the information to P.W. Chandra Pal Sharma, has been examined.
About the letters the High Court 's finding is that from their tenor it was clear that these were brought into existence for the purpose of the election petition.
We find nothing to justify a different view.
The other allegation with regard to the issue of bribery is that a sum of Rs. 3000/ was paid to Niamat Khan, Pradhan of village Bishambara, for constructing a mosque to induce the Muslim voters of that 420 village to vote in favour of the first respondent.
The only witness examined to prove this allegation is P.W. 24, Usman.
According to him on the evening previous to the date of poll, grand father of the first respondent came to Niamat Khan and paid Rs. 3000/ to him ;n return for his promise that he would see that all the Muslim votes were cast in favour of the first respondent.
On cross examination the witness admits that he does not know what happened to that money and that he was disclosing this fact for the first time in court.
He is not named either in the election petition or on the schedule thereto.
He came to depose without receiving any summons.
Niamat Khan has been exam ined by the respondent as his witness and he denies the allegation as totally false.
The High Court therefore did not rightly put any reliance on the evidence of this wit ness.
The appellant had no personal knowledge of the facts alleged in support of the case of bribery.
Exhibit P. 10, the letter he addressed to the District Magistrate on Febru ary 25, 1974 of course contains a vague reference to these allegations, but this, as the High Court has said, seems to have been written "with a view to create some sort of an evidence in case.
election petition was necessitated to be filed".
We find no merit in this appeal which we dismiss with costs.
P.B.R. Appeal dismissed.

summary/full:
In the election to the State Assembly the first respond ent was declared elected.
The appellant, who was one of the defeated candidates, impugned the election on the ground that the first respondent was guilty of adopting corrupt practices within the meaning of section 123(2), (3) and (3A) of the Representation of the People Act, 1951.
It was alleged that (i) to get support of the Muslim voters of a village, the first respondent offered a bribe for the construction of a school building for Muslim boys in the village and (ii) in another village with predominant Muslim voters, he paid a big sum of money for the construction of a mosque.
The first respondent in his written statement denied the allega tions as absurd and baseless and denied in toto the allega tion of bribery.
The High Court dismissed the petition.
On appeal to this Court it was contended that the alle gations against the respondent must be taken to have been admitted in view of his vague and evasive denial.
Dismissing the appeal, HELD: The well settled principles governing election dis putes are: (1) proceedings arising out of election petitions are quasi criminal in character and the allegations made in the petition must be proved beyond reasonable doubt; (2) in an appeal under section 116A of the Act the Supreme Court will not interfere with the findings of fact recorded by the trial court except for very strong and cogent reasons; and (3) it is unsafe in an election case to accept oral evidence at its face value without looking for assurances from some surer circumstances or unimpeachable documents.
[413F] Rahim Khan vs Khurshid Ahmed, ; , 656, followed.
(i) In the instant case the contention that donation to public or charitable institutions could not amount to bribery is a legal plea asserting that even on the state ments made in the election petition the allegation of brib ery was not sustainable.
The allegation of bribery was denied by the first respondent in toto and as false and baseless.
[418G] (ii) The story that the first respondent visited the village at midnight and doled out money to a crowd of Muslim voters could not be true.
The central figures in the dis pute over the money had not been examined by the appellant and the letters produced by him to strengthen oral evidence relating to the incidents were clearly brought into exist ence for the purpose of election petition.
[419G] (iii) As regards the amount alleged to have been paid for the construction of a mosque one of the witnesses exam ined deposed without receiving any summons from the court.
The appellant had no personal knowledge of the facts alleged in support of the case of bribery.
The High Court rightly held that the letter which the appellant addressed to the District Magistrate containing vague references to the allegations had been written "with a view to create some sort of evidence in case the election petition was necessi tated to be filed ' '.
[420C] 413