(Prayer: Appeal (disposed of on 6-9-1946) against the order of the Court of the Principal Subordinate Judge of Madura dated 21-12-44 and made in E.P. No. 33 of 1944 in O.S. No. 96 of 1926.)

This appeal is against the order of the Subordinate Judge of Madura in E.P. No. 33 of 1944 in O.S. No. 96 of 1926 on his file. The application was for the sale of the share of the deceased first defendant in items 2, 3 and 5 of A Schedule property in realisation of the decree amount. This petition was dismissed chiefly on the grounds that the plaintiffs application with regard to these items was barred under S. 48 of the Code of Civil Procedure, that items 2, 3 and 5 are inalienable service inam lands and their sales are opposed to public policy and that it was not open to the executing Court to entertain an application for their sale in execution.

Mr. Ramaswami Ayyar argued before me that both these conclusions were wrong. It will be convenient to deal with the second point first. The principle is undoubtedly well settled that an executing Court cannot go behind the decree and pass an order in execution which will have the effect of nullifying the decree. To this general principle two well known exceptions have been engrafted namely, that the executing Court will stay its hands where it is plain on the face of the record that the alienation is prohibited by statute or that it is opposed to public policy. In the present case it is contended that items 2, 3 and 5 being un-enfranchised service inam lands are inalienable and that their sale in execution should not be permitted by the executing Court in pursuance of the principle mentioned above. The answer to this contention is that it is not apparent on the face of the record that items 2, 3 and 5 are temple service inam lands. This does not seem to be correct. In the plaint itself the plaintiff who is the appellant here contended that these items were un-enfranchised service inam lands and that in consequence their alienation was opposed to law and custom and the alienations of those items were void. In the judgment given in the suit, O.S. No. 96 of 1926, this contention has been set out in paragraph

2. It no doubt suited the appellants purpose in the execution petition to go back upon this admission and to seek the sale of those lands; but it is not even now pretended that these are not service inam lands and that they were granted personally as absolute estate, This is therefore a case where on the face of the record, it does appear that items 2, 3 and 5 are un-enfranchised temple service inam lands and as such by reason of the decision of the Full Bench in Anjaneyalu v. Sri Venugopala Rice Mill Ltd. (45 Mad. 620 [LQ/MadHC/1922/13] =15 L.W. 513 (F.B.) and a number of other cases that have followed that decision, it must be held that the land is inalienable and its sale is opposed to public policy. Reference was made to two decisions of this Court, one decided by a single Judge Pakenham Walsh, J. in Ranga Ayyar v. Sundararaja Ayyangar , (37 L.W. 358), and the other decided by a Division Bench in Annamalai Chettiar v. Srirangachariar (I.L.R. 1937 Mad. 329=44 L.W. 795). In Raja of Vizianagaram v. Dantivada Chelliah (28 Mad. 84) and Rajah of Kalahasti v. Venkatadri Rao (50 Mad. 897 [LQ/MadHC/1927/206] =26 L.W. 386) it has been held that where the nature of the property is known and the property is inalienable, the executing Court must stay its hands. These decisions are referred to in the cases cited by Mr. Ramaswami Ayyar, but in both those cases it must be noted that the nature of property itself was in dispute. In the case in Ranga Ayyar v. Sundararaja Ayyangar (37 L.W. 358), the dispute as to the nature of the property was raised at the execution stage and evidence was gone into, the executing Court reaching one conclusion and the appellate Court reaching a contrary conclusion. When the matter eventually came before this Court, it was pointed out that it was obvious that the very nature of the property was in dispute and in such circumstances the executing Court could take upon itself the function of deciding that issue, after a decree had been passed. That decision to my mind does not in any manner detract from the principle laid down in Raja of Vizianagaram v. Dantivada Chelliah (28 Mad. 84) and Rajah of Kalahasti v. Venkatadri Rao , (50 Mad. 897 [LQ/MadHC/1927/206] =26 L.W. 386) that where it appears from the face of the record that the property in question is not alienable, the executing Court will not proceed to direct its sale. In the Division Bench case Annamalai Chettiar v. Srirangachariar (I.L.R. 1937 Mad. 329=44 L.W. 795) the facts are more or less the same as in Ranga Ayyar v. Sundararaja Ayyangar (37 L.W. 358); there also the nature of the property was not known and it was held that the executing Court could not go into that question. In the present ease, as I have already stated, the plaint as well as the judgment make it clear that items 2, 3 and 5 are properties whose alienations are opposed to public policy and with that knowledge I am convinced that the executing Court was right in staying its hands and not directing the sale of those properties in execution.

In view of this finding, it is not necessary for me to go elaborately into the first point that has been argued before me, namely, that S. 48 of the Code of Civil Procedure does not operate with regard to item

2. Here the decree was passed on 23rd November, 1928 and the execution application was filed on 27th September, 1943 more than twelve years after the date of the decree. It is admitted that so far as items 3 and 5 are concerned, they are barred under S. 48 except with regard to future maintenance. The only item with regard to which this question arises is the second item. That item, was subject to a lease which expired in 193

9. The lease was in favour of the eighth defendant. The decree directed that the claim could be enforced against that item only after the expiry of the said lease. The contention therefore with regard to the second item is that the enforceability of the decree against that item arose only after 1939 and that the twelve years period is available from after that date. Even with regard to this item it is plain that it cannot be sold in execution of the decree by reason of the finding that I have now come to on the looting that it is temple service inam land. No doubt, it is open to the maintenance holder to enforce the decree against this item in any other way that may be open to her under the law except by sale of the land. That right will be reserved to her subject to the respondents contention based on Art. 182(5) of the Limitation Act.

The appeal is dismissed with costs in this Court.