Ramaswami and Somasundaram JJ.

(1) This Full Bench has been constituted on a reference made by one of us in the following circumstances:

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

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

(4) Delivery of possession has not yet taken place.

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

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

(7) That the property in question is Devadayam land and Service Inam granted for the purpose of a particular service in Sri Meenakshi Sundereswarar temple at Madurai, can be assumed for the purpose of this reference as established, though naturally we can make no final pronouncement on it. It is now well settled that lands forming the emoluments of offices of a public nature cannot be alienated by the holder by way of sale, gift or mortgage or sold in execution of a decree against him. This has been recognised as a rule of general law based upon public policy in connection with Inams granted for service in the following cases: Lakshmanaswami Naidu v. Rangamma, ILR 26 Mad 31; Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), ; Archaka Sundara Raju Dikshatulu Vs. Archaka Seshadri Dikshatulu and Others, ; V.E. Ramanathan Chettiar Vs. Kalidasa Kavandan and Another, ; N. Adinarayana Chetty and Another Vs. A. Chengiah Chetty and Others, Soora Ramakrishnamma Vs. Pasumarthi Venkata Subbiah and Others, ; Lakshmudu v. Ramudu, ILR 1940 Mad 123 : AIR 1939 Mad 867; and Kotayya v. Ramaswami Subbarayudu, 1956 Andh WR 739 : AIR 1957 AP 182 [LQ/TelHC/1955/93] . The principle is that if there is dissociation of the office from the emoluments attached thereto, such dissociation impairs the efficiency of the service to be rendered. Therefore, it is held that it is contrary to public policy and such alienations are void.

(8) It is well known however that many of these service inam-holders alienate the properties without reference to their obligations and do not set up the inalienability for reasons of their own during the course of the trial or before the confirmation of the sale. In other words, the alienor and the alienee for ulterior objects of their own and to the detriment of the trust, are discreetly silent regarding the inalienability of the property in question, so that the court might proceed to grant the decree.

(9) Then this interesting arises. What happens if the inalienability is set up in the executing court after the decree has been passed Is that court competent to go into that question in order to come to the conclusion that it cannot execute the decree or could it be a case of that court being prevented from doing so by the equally well-settled principle that the executing court cannot question the decree which it is asked to execute.

(10) There are two lines of decisions in regard to this point of law raised, one line of decisions holding that it is the duty of the executing court on being satisfied that the lands are service inam & therefore not alienable to stay its hand and another line of decisions holding that the decree precludes the executing court from going behind the decree however void that the sale in pursuance of the decree may be. That line of decisions emphasise that an executing Court can never go behind the decree.

(11) Inasmuch as this is a matter which is coming up before this court often, and is one of practical importance the following two questions have been referred to the Full bench:

1. Whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability under S. 35 of Madras Act XIX of 1951, it is open to the Inamdar or his successor-in-title to treat the court sale as null and void and seek to recover possession of the lands from the purchaser at the court sale or resist the claims of the purchaser, to be put in possession of the lands

2. Whether Ss. 11 and 47 C.P.C. are a bar to the maintainability of the objections.

Before entering into an examination of the two lines of decisions, we wish to make it clear that we have confined ourselves to answering the substance of the reference, viz., whether it is open to the executing court on being satisfied that the lands are service inam lands and there not saleable, to stay its hand. In regard to the merits of the instant case on our answering this reference, the appeal will go back to the single judge for disposal.

(12) In ILR 26 mad 31, decided by a Bench of this court consisting of Davies and Rame Benson JJ. it was held that notwithstanding the fact that a compromise decree has been passed directing the sale of an inalienable office, the executing court has jurisdiction to go behind the decree and refuse to execute it, since by S. 375 C.P.C. the court has no jurisdiction to pass a decree on a compromise unless it was a lawful compromise and any terms of a contract which are opposed to public policy are invalid and will therefore not be enforced by the courts, and so far as a decree embodies unlawful terms of a compromise it is inoperative and will not be enforced.

(13) In Raja of Vizianagaram v. Chelliah, ILR 28 Mad 84, which related to sale of service inam land on the foot of a mortgage decree, it was argued that as between the parties to the decree the order for sale therein contained must be carried out notwithstanding the prohibition by law. But this argument was repelled on the ground that the decree directing the sale of such lands is ultra vires and the prohibition in question based upon public policy must be taken to be absolute, and deprives the civil courts of jurisdiction to give directions for sale of such inam property.

(14) In ILR 45 Mad 620 [LQ/MadHC/1922/13] ; Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), a Full bench of this court held that lands held on Swastivachakam service tenure are not subject to attachment in execution of a decree, as the sale of such lands is opposed to public policy and the nature of the interest affected.

(15) It is unnecessary to examine the other decisions because in N. Adinarayana Chetty and Another Vs. A. Chengiah Chetty and Others, , Venkataramana Rao J. has examined the entire case law and has formulated the following propositions and which, if we may say so respectfully, cannot be bettered, viz., that there is an exception to the application of the general rule as to jurisdiction of the executing court to go behind the decree; where alienation of certain property is prohibited on grounds of public policy, either under the general law or by statute, the executing court can refuse to execute the decree which directs such a sale; and that a distinction should not be drawn between the cases where the prohibition appears on the face of the decree and cases where evidence will have to be taken to ascertain it, and it is the duty of the court to entertain the objection and determine the same if necessary by taking evidence.

It must be borne in mind that N. Adinarayana Chetty and Another Vs. A. Chengiah Chetty and Others, was a case where the question raised was whether it was open to a party who had been added as the legal representative of the deceased mortgagor defendant to resist the passing of a final decree on the ground that the mortgaged property being an Acharyapurusha service inam is inalienable and the sale of such property would be illegal on grounds of public policy. Venkataramana Rao J. held that the doctrine that an executing court cannot go behind the decree would not be applicable to a case where objection is taken at the stage of passing the final decree in the mortgage suit, as until the final decree is passed in a mortgage suit, there is no executable decree and the suit must be deemed to be still pending and the application for final decree is not an application for execution.

(16) In 68 MLJ 46 [LQ/MadHC/1934/308] ; Soora Ramakrishnamma Vs. Pasumarthi Venkata Subbiah and Others, where a Desabandham inam was sold in execution of a decree against the Inamdar, it was held by a Division Bench that as the land was inalienable it could not have been validly sold in execution. Though the facts are not fully reported, it appears that the validity of the sale came in question in a suit by the purchaser for possession which the Inamdar successfully resisted. In ILR 1940 Mad 123 : AIR 1939 Mad 867, another Division Bench held that a sale of Desabandahma Inam lands held and confirmed in execution of a mortgage decree obtained against the Inamdar was a nullity and could be disregarded by the Inamdars legal representatives though they were parties to the execution proceedings. This case was also a suit for recovery of possession.

(17) Turning to the other line of decisions of this court, they are Vuppulury Somasundaram Vs. Bhimisetti Kondayya, , followed by King J. in Allamsetti Venkatappadu and Others Vs. Manda Appalaswami, and by Madhavan Nair J. in (Boggavarapu) Bullayya and Others Vs. (Garlapati) Subbayya and Another, The reasoning of the learned Judges is found in the judgment of Venkatasubba Rao J. in Vuppulury Somasundaram Vs. Bhimisetti Kondayya, .

"We are not here concerned with the true facts of the case but only with the result of certain proceedings. Is the defendant (the holder of the service inam) to be permitted to plead that the land was inalienable at the time of the court sale The effect of the order confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property can be sold."

To these decisions may be added Annamalai Chettiar v. Kumarappan Srirangachariar, 71 Mad LJ 867 : AIR 1937 Mad 134. It was a case of a mortgage decree for the sale of temple service inam lands, whose alienation, though not prohibited by statute, was opposed to public policy according to the uniform course of decisions in Madras. Burn and Lakshmana Rao JJ. held reversing Pandrang Row J. and agreeing with an earlier decision of Pakenham Walsh J. in R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, that the executing court could not go behind the decree and entertain an objection to its validity but must execute the decree as it stood. The learned judges rested their decision on these grounds; (1) There was no want of jurisdiction in the court which passed the decree apparent on its face; (2) the prohibition against alienation was not statutory. (3) The executing Court had no power to go into disputed questions of fact which, if proved, would take away the jurisdiction of the court which passed the decree to order sale. The learned Judges were evidently prepared to make an exception where the decree for sale contravened a statutory prohibition like S. 5 of Madras Act III of 1895 of S. 6 of Madras Act II of 1904 for it was on this ground that they distinguished ILR 28 Mad 84 and R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, .

(18) It will thus be seen that Vuppulury Somasundaram Vs. Bhimisetti Kondayya, and the other decisions relied upon the bar of res judicata as precluding the judgment debtor from pleading that the land was inalienable in subsequent proceedings. In regard to 71 Mad LJ 867 : AIR 1937 Mad 134, we also venture to think, with Viswanatha Sastri J. to whose order reference will be made presently, that where the alienation of service inam lands is prohibited on grounds of public policy, either under the general law or by statute, the position is the same and in either case is it the duty of the executing court on being satisfied that the lands are service inam lands and therefore not saleable, to stay its hand.

(19) This was the position of the case law so far as this court is concerned when the Andhra Pradesh High Court dealt with a controversy of this nature in 1957 2 Andh WR 137 : AIR 1958 AP 1. In that case the suit was brought for a permanent injunction restraining the defendants from interfering with the possession and enjoyment of certain carpenter service inam lands held by the family of plaintiffs 1 to 3. The lands were mortgaged by the plaintiffs to the first defendant who filed a suit on the mortgage, obtained a decree for sale & had the lands sold through court at an auction sale at which he was the purchaser. Thereafter he sold the lands to the second defendant on whose contest the suit was dismsised as being barred by res judicata. There was a second appeal which came before Viswanatha Sastri J. in the first instance. The learned Judge assembled all the relevant cases and indicated his own respectful agreement with the opinion of Venkataramana Rao J. Air 1938 mad 918 [LQ/MadHC/1938/192] , that where the alienation of service inam land is prohibited on grounds of public policy either under the general law or by statute, the executing court enquiring into the matter should refuse to execute the decree which directs such a sale, and expressed his disagreement with T.T.K.K. Kumare Appan Srirangachariar Vs. T.V.A.K.T. Annamalai Chettiar, which held that if it is admitted in the course of the execution proceedings that the land directed to be sold by the decree are service inam lands the executing court cannot proceed to sell the lands but if this fact is disputed the executing court is incompetent to hold an enquiry to find out the truth. Therefore, Viswanatha Sastri J. finding that there has been a difference of judicial opinion on the question whether when service inam lands are sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason f the prohibition contained in S. 5 of Madras Act III of 1895, it was open to the inamdar to treat the court sale as null and void and recover possession of the lands from the purchaser at the court sale or resist the claim of the purchaser to be put in possession of the lands. He therefore directed the papers to be placed before the learned Chief Justice for posting the case before a Division Bench

(20) The second appeal came up before Subba Rao C. J. and Bhimasankaram J. and they formulated the two questions as in the instant case and referred the matter to a Full Bench. The Full bench consisting of Subba Rao C. J. and Satyanarayana Raju and Mohd. Ahmed Ansari JJ held that when the decree was made the court must be deemed to have decided that the said property was alienable property and therefore the said decree would operate as re judicata in a subsequent suit and that the question raised by the plaintiffs-appellants that the lands sold in execution are inalienable service inam lands does not relate the execution of the decree for it attacks the decree itself on the ground that it is void and as an independent suit will lie.

(21) The doctrine of res judicata liberally meaning the matter that has been decided and sometimes expressed as "res judicata" a singular and not a plural term as has been pointed out in Hukumchands (T. L. L.) Treatise on the law of Res Judicata including the Doctrines of jurisdiction, bar by suit and lis pendens (1894). "is of universal application, and, in fact, a fundamental concept in the organisation of very jural society, Justice requires that every cause should be once fairly tried, and public tranquillity demands that having been tried once, all litigation about that cause should be concluded for ever between those parties. The maintenance of public order, the repose of society, and the quiet of families, requires that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth. If it were not for the conclusive effect of all such determinations there would be no end of litigation and no security for any person, the rights of parties would be involved in end less confusion, and great injustice often done under cover of law; while the courts, stripped of their most efficient powers, would become little more than advisory bodies; and thus the most important function of the Government-that of ascertaining and enforcing the rights-would go unfulfilled".

The term "res judicata" is derived from the Roman law, and in its most obvious and general meaning it signified at Rome, as it signifies in England, and in America, that a matter in dispute had been considered and settled by a competent court of justice. It is based upon the twin principles:

"every judgment was allowed a conclusive affect on the ground re judicata pro veritate accipitur (a matter adjudicated is taken for truth) and so conclusive was the effect of it that it was said res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum".

The doctrine of res judicata was also more immediately based on the equally well known maxim "nemo debit bis vexari pro unra et esdem causa". These maxims based on public interest and private convenience are enshrined in the jurisprudence of every civilised country today-Interest reipublicae ut sit finis litium-otherwise great oppressions might be done under colour and pretence of law (Halsburys Laws of England, Simonds Edn. Vol. 15 page 184 and foll; Words and Phrases Permanent Ed. Vol. 37 (V 1658 to date) West Publishing Co., St. Paul Minx U. S. A.) page 612 and foll.: Corpus Juris Secundum, Vol. 31 (the American Law Book Co., N. Y. page 186 and foll.; Vol. 77 page 274 and foll.).

(22) The substance of the rule as enunciated and recognised in England was approved and acted upon in India in numerous cases by the Judges and imported almost res integra in this country long before the enactment of a complete CPC in India and embodied in S. 11.

(23) Res judicata is a form of estoppel and under English law S. 11 would correspond to estoppel by record. But res judicata differs from estoppel by conduct in essential particulars. The former results from a decision of the court, & based on public policy ousts the jurisdiction of the court, & presumes conclusively the truth of the former decision. The latter results from acts of parties and is based on equity, and formulates only a rule of evidence and prevents a person from setting up what he calls the truth. It is a well settled principle that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and wholesome rule applies not only to the successive stages of the same suit but also to those suits which grow out of the judgment in the first suit; see that AIR Commentaries on the Code of Civil Procedure, 6th Edn. (1957) Vol. I, page 281; Bigelow 783; AIR 1931 123 (Oudh) , Hemanta Kumari Devi Vs. Prasanna Kumar Datta, Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, ; Shyama Bhai Vs. Purushothamadoss, . It is interesting that in the Dharma Sastra Pragnyaya or Purvanyaya (res judicata) was a completed answer. It could proceed through the King, Judge, the scribe or one of the Sabhyas as to what was said and decided. (P. V. Kanes History of Dharmasastra, Vol. III, page 332 etc.) The rule of constructive res judicata embodied in explanation IV to S. 11 C.P.C. was enforced (ibid) page 306; Kat. 221 (q. by Mit. on Yaj. II, 80 and V. P. p. 80).

(24) On this principle of finality of proceedings we have evolved the ancillary principle that it is against public policy and good sense alike that the court charged with the execution of a decree, proceeding collateral to the judgment should be allowed to question its validity; vide the observations of Page C. J. in S. A. Nathan v. S. R. Samson, ILR 9 Rang 480 : AIR 1931 Rang 252, See also Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, . This principle is embodied also in a series of decisions of this court. It is enough to cite Govindan Nadar Vs. Natesa Pillai (Lunatic) represented by his wife and guardian Annathachi, which holds that the executing court must take the decree on its face R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, which holds that the executing court cannot go into controversial questions, ILR 1937 Mad 329 : AIR 1937 Mad 134, wherein it has been held that the power of the executing court to go behind the decree should be circumscribed within the minimum possible limits and The Commissioner of Income Tax Vs. The Salem District Urban Bank, Limited, wherein it has been held that the court should be very chary of recognising fresh exceptions. These are all based upon the principle of res judicata which is a cardinal principal of all legal systems of most civilised countries and which has been described as the most salutary cannot prevail as the long line of Madras decisions referred to above show, to the extent of compelling the executing court to sell inalienable service inam lands prohibited on grounds of public policy either by statute or under the general law; (for similar decisions of the other High Courts see Bai Suraj Vs. Haribhai Motabhai, (execution in contravention of Bhagdari etc. Act) Katwari v. Sita Ram AIR 1921 All 118 (S. 20 of Agra Tenancy Act); Chintamani Saran Nath Sah Deo Vs. Syed Zahiruddin and Others, (sale prohibited by S. 47 of Chota Nagpur Tenancy Act).

It will be remembered now Burn and Lakshmana Rao JJ. in 71 Mad LJ 867 : AIR 1937 Mad 134 appear to hold that if it is admitted in the course of the execution proceedings that the lands directed to be sold by the decree are service inam lands, the executing Court cannot proceed to sell the lands but if this fact is disputed the executing court is incompetent to hold an enquiry to find the truth. But like Viswanatha Sastri J. we are in respectful agreement with the opinion of Venkataramana Rao J. in N. Adinarayana Chetty and Another Vs. A. Chengiah Chetty and Others, that where the alienation of service inam lands is prohibited on grounds of public policy, either by a statute or under the general law, the executing court on being satisfied that the lands are service inam lands and therefore not saleable should stay its hand. To this extent we respectfully differ from the Full Bench decision in 1957 2 Andh WR 137 : AIR 1958 AP 1.

(25) The final point for determination is as to what constitutes satisfaction referred to above. Several decisions have been emphasising that it is only when the decree appears to be void on the face of the record the executing court can go behind the decree and enquire. It need not be pointed out that it is an elementary principle of law that every court has got jurisdiction or not. But as Viswanatha Sastri J. has rather caustically pointed out.

"I find it difficult to accept the view that the want of jurisdiction of the court to direct a sale of the eland on the ground of its being a service inam ut appear on the face of the decree. Courts seldom pass decrees reciting therein their incompetency or facts showing it."

But at the same time though in most of the cases cited by Viswanatha Sastri, J. in his order of reference, the decree for sale, preliminary or final, did not contain within itself anything to show that the land was inalienable and yet it was held that the Court had no power to order the sale we are of opinion in accordance with the decisions to which we shall now refer that either the plaint, or written statement, or issues or judgment, when looked into should contain some materials for concluding that the land sought to be sold through Court is inalienable service inam land. Otherwise we would be practically engrafting on the execution stage a totally different suit which does not arise at all from the old suit.

In Meenakshi Ammal Vs. T.S. Chidambaram Chettiar (died) and Another, , it was held that the objection that the property cannot be sold in execution being service inam land should be clear from the plaint and the judgment. In 71 Mad LJ 867 : AIR 1937 Mad 134 it was held that when the fact of inalienability is denied and that allegation is not made out ex facie it is not open to the executing court to launch an enquiry into the plea of inalienability. In Sham Sundar Singh Vs. Dhirendra Nath Chandra and Others, and Chintamani Saran Nath Sah Deo Vs. Syed Zahiruddin and Others, it has been held that the question must appear on the face of the record and should not involve an investigation of absolutely fresh facts. In other words, the executing court can go into the inalienability character of the service inam lands and their unsaleability only if the plaint, or written statement, or issues or judgment etc., which we may legitimately look into disclose inalienability of the inam.

(26) Thus, we can reconcile the two great principles based upon public policy, viz., execution of the decrees which are shown to be nullities and the principle of res judicata, in the immutable interests of truth and justice.

(27) This reference is answered accordingly.

Anantanarayanan, J.

(28) I have had the advantage of study of the judgment of my learned brother, Ramaswami J. Since I am in entire agreement with his conclusions, and the manner in which he has propounded the answers to the two questions referred to us, it might not seem necessary that I should add my own observations. But I am impelled to do so, for the reason that we are not merely faced with a problem of some intricacy and importance, but also with what appeared to be two opposing streams of case law as far as this court is concerned. Further the Full Bench decision of the Andhra High Court in 1957 2 Andh WR 137 : AIR 1958 AP 1 is entitled to our very great respect, and if we are dissenting therefrom, we certainly owe a duty to make explicit as far as we can, the grounds upon which we feel constrained to take a different view.

(29) I make no apologies for again reproducing the two questions referred to the Full Bench, for 1 think that there is at least a difference of emphasis between the questions themselves, and the manner in which we have sought to answer the substance of the reference. Further, this difference should be brought out at the very outset, in the interest of clarity. The questions referred to us are phrased as follows:

(1) Whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability under S. 35 of the Madras Act XIX of 1951, it is open to the Inamdar or his successors-in-title to treat the court sale as null and void and seek to recover possession of the lands from the purchaser at the court sale, or resist the claims of the purchaser to be put in possession of the lands

(2) Whether Ss. 11 and 47 C. P. Code are a bar to the maintainability of the objection

At the first blush, it would certainly appear as if the answer to this specific question, raised in this form, is that, notwithstanding the fact that service inam lands had been sold in execution of a mortgage decree in contravention of both public policy and the statutory prohibition under S. 35 of Madras Act XIX of 1951, it is not open to the inamdar or his successor-in-title to treat the court sale as null and void and seek to recover possession of the lands from the purchaser at the court sale, or to resist his claim for delivery of possession. That is because, the Inamdar or his successor-in-title, not having raised any objection at any prior stage of the proceedings, would clearly be prohibited from putting forward such a contention under the doctrine of constructive res judicata which admittedly applies to execution proceedings also.

Further, when we examine the case law with regard to what might be termed the opposite school of thought, we see that the matter has also been put in some such form as follows. The doctrine inhibits the party from putting forward the claim. Not merely this, it goes further, and assumes a decision of the court to have been made, because of a failure to put forward the contention as to saleability, which should have been raised by the party affected by the sale, and which was not raised. It is hence argued that the court must be deemed to have decided that the said property was alienable property, and, upon this logic, the question of the executing court having the power to go behind the decree, because the decree contravenes public policy or statutory prohibition, does not arise at all.

This, it appears to me, is the highest and the most forceful form in which the basic of the decisions which have taken an opposite view could be expressed. They are R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, and the Bench decision of Burn and Lakshmana Rao JJ. in 71 Mad LJ 867 : AIR 1937 Mad 134. To these must be added the Full Bench decision of the Andhra High Court, that I have earlier referred to.

(30) The case law upon this aspect, of all the High Courts, which has been referred to during the course of arguments, is very extensive, and I propose to limit myself to the cross-section of a few selected cases. Further, my learned brother has already dealt with the relevant decisions extensively. Since I am chiefly concerned with those cases which appear to be opposed in trend to the main line of decisions of this court, I need not cite and discuss the precedents of the latter group in detail. They range from N. Adinarayana Chetty and Another Vs. A. Chengiah Chetty and Others, where Venkataramana Rao J. has scrutinised and dealt with the entire previous case law. I might also refer to the decision of Yahya Ali J. in Air 1947 Mad 341 [LQ/MadHC/1946/212] and to Kadimcherja Raju and Others Vs. Kondapi Ayyaparaju, . What is it that these decisions have attempted to expound as a leading principle in this matter, and how is this related to the inhibiting rule of constructive res judicata that I have earlier referred to That appears to be the crux of the problem.

(31) Those who have given some study to medieval system of jurisprudence, like Hindu Jurisprudence, for instance (I might here refer to the invaluable lectures on the "Hindu Judicial System" by Sri. V. Varadchariar) will realise that, while many of these systems did provide for a satisfactory adjudication of civil rights by Courts or Judges the weakest part was the effective realisation of the claims so declared. In other words, the provision of a satisfactory and speedy machinery for the execution of decrees was a comparatively later development, owing to many factors. It is a vital and valuable part of the system of law and the administration of justice, that we have inherited from the British period in Indian History.

A scrutiny of the relevant provisions of the CPC and of the rules forming Order XXI of the Code, will convince any student of comparative law the great trouble taken to see that the execution of decrees is speedy and effective, that justice is not delayed or frustrated by a powerful and recalcitrant judgment debtor, while at the same time, that a balance is preserved enabling third party claims to be investigated. It is, therefore, a salutary and fundamental principle of the law relating to execution, that the executing court cannot go behind the decree.

If it were permitted to do so, the execution proceedings would deteriorate into another original suit of trial of the claim, and that is why Pakenham Walsh J. in R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, said that "any such doctrine would obviously have most disastrous consequences." But, nevertheless the rule has its exceptions; the exceptions will have to be confined, and carefully confined, to rigid limit, so that execution is not frustrated by a judgment debtor or a party claiming under him who has thought up new defences, or who desires a new trial upon allegations affecting the saleability of land.

(32) But, equally, I do not see how it is possible not to hold that, under certain exceptional circumstances at least, an executing court can go behind the decree, and refuse to execute a decree which is both opposed to public policy and to enacted law. As I conceive it, this power of the court is not the right of a party, or the power of the party at all; though a party can invoke the exercise of this power by bringing facts to the notice of the court, the power arises really because the conscience of the court is stirred. Either it is undisputed by the parties, or it is indisputably established and made evident from material which is upon the same footing as decree sought to be executed, that the decree contravenes both public policy and the enacted law.

If, within such limits, such a situation arises, how can lay it down that the executing court cannot go behind the decree and decline to execute it It seems to me that, viewed from this perspective the apparently opposed streams of case law are not truly opposed at all. They are, in fact, perfectly reconcilable, or at least reconcilable if we bear in mind the context of facts in each case relating to the decisions that have taken an opposite view, and the manner in which that view has been expounded in those decisions. In brief any rule of estoppel or constructive res judicata which would prevent the inamdar or his successors-in-title from agitating this matter of saleability in execution proceedings, is upon one plane of principle.

The power of the executing court to go behind the decree, because it is opposed to public policy and also offends a statutory prohibition, is upon another plane altogether. It must be carefully delimited, and no executing court can launch into what is virtually a fresh trial, because of mere allegations, or of further new material claimed to be available. To stir the conscience of the court, material on the same footing, as the decree itself, and equally evident and indisputable, must show that the land is inalienable, and that the sale offends public policy and law. I am in entire agreement with my learned brother, that we must circumscribe the power of the executing court to go behind the decree to such instances, in answering this reference.

(33) I shall now make a few brief observations upon certain of the cases. It is clear, enough, from a scrutiny of Vuppulury Somasundaram Vs. Bhimisetti Kondayya, , that the learned Judges were concerned in this case with what was originally an unenfranchised inam, subject to a mortgage, which was subsequently enfranchised and sold. The learned Judges held that there was, in virtual effect, though not expressly, an adjudication that the property was saleable, and this is clear from the observations of Venkatasubba Rao J. also quoted in my learned brothers judgment. In R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, Pakenham-Walsh J. has based the decision upon the logic, that there was no want of jurisdiction apparent on the face of the decree, and that it was clearly most improper for the executing court to embark in execution on an investigation into a controverted question of fact. With this we must certainly agree.

(Boggavarapu) Bullayya and Others Vs. (Garlapati) Subbayya and Another, was a case in which the court originally held that the land had been subsequently enfranchised or resumed, and was therefore saleable. The question before Madhavan Nair J. related to the effect of certain proceedings before the Collector, who held that the land was a service inam.

(35) 71 Mad LJ 867 : AIR 1937 Mad 134 is again, a case in which (as my learned brother has pointed out) the prohibition against the alienation was not statutory, and the learned Judges, Burn and Lakshmana Rao JJ., actually held that the executing court had no power to go into disputed questions of fact, which, if established, might take away the jurisdiction of the court which passed the decree.

(36) We have, no doubt, the difficulty pointed out by Viswanatha Sastri J. in his order of reference in 1957 2 Andh WR 137 : AIR 1958 AP 1 "Courts seldom pass decrees reciting therein their incompetency, or facts showing it." But for this reason, we cannot permit every judgment debtor or party affected to allege facts and to invite or compel the executing court to embark on an enquiry which, in effect, would involve a retrial of the suit which had ended in the decree. I think that the necessity for the limitations that my learned brother has proposed, with which I entirely agree, would at once become apparent, if we remember that we are here concerned with an exceptional power of the court to go behind the decree that it is executing, not a power or the right of the party. I might here refer to certain observations of Page C. J. in ILR 9 Rang 480 : AIR 1931 Rang 252 with which with the greatest respect I am unable to agree, for the very reason that I feel that this passage does not sufficiently emphasise the distinction that I have in mind between the right of a party and the power of the executing court to go behind the decree, as a matter of conscience, in exceptional cases:

"What is meant by the word apparently in the passage that I have cited Does it mean that where the want of jurisdiction in the decretal court is patent the executing Court can question it, but where it is latent the executing court possesses no such power, and must execute the decree But if the fact is that the decretal court had no jurisdiction to pass the decree I ask, with all due respect to the learned Judges who decided Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, what difference does it make in principle or as a matter of common sense whether the executing court ascertains that fact by perusing the decree, or after hearing evidence or holding an enquiry"

In my view, there is surely a very wide difference in practical effect. If the executing court were to be permitted to go behind the decree by embarking upon an extensive enquiry into hitherto undisclosed material, whenever it is alleged that the decree lacks jurisdiction or that a decree for sale is opposed to public policy and to enacted law, and this is itself a matter in controversy, the executing courts would lose their character, and function as courts of retrial. Further, the entire effect of the processual law relating to the execution of decrees enabling a decreeholder to obtain the fruits of his adjudicated claim, would be stultified.

(37) There is a passage in the Full Bench decision in 1957 2 Andh WR 137 : AIR 1958 A.P. 1, which, if I may say so with great respect, brings out in clear relief the true distinction between these apparently opposed streams of case law, which themselves flow from the application of principles upon different planes. The passage occurs in the judgment o the learned Chief Justice (page 150 of Andh WR): (at p. 7 of AIR), and runs as follows:

"There is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public policy or statute may be void. But the said prohibition cannot have the effect of depriving the jurisdiction of courts to decide in a particular suit whether the alienation is void or not. Nor can it override the principles of res judicata. The former belongs to the domain f substantive law, and the latter to the rule giving finality to decrees of competent courts. The sanctity of final judgment is as much based on public policy, as prohibition against the alienation of properties annexed to certain public offices.............................. When the defence which ought to be raised is not raised, the court must be deemed to have decided against the contention not raised."

With the greatest respect, I venture to suggest that the two principles of res judicata or constructive res judicata, and of prohibited alienation of properties on grounds of public policy and the enacted law, are upon different planes. The first principle inhibits the party and takes away the power of the court to try the plea, in all contested cases raising a mixed question of fact and law (as the learned Chief Justice himself observes in this very context), by deeming a decision to the effect that the land was alienable. The second principle is an overriding principle, really related to the conscience of the court. Though a party may invoke the exercise of the power, the court will exercise it only under exceptional circumstances; that is, under the conditions enunciated by my learned brother. In this case, the principles are reconcilable, and no party can invite an executing court to embark on an enquiry into a controverted question of fact, with reference to material which is not upon the same footing as the decree sought to be executed, nor equally evident. But where the fact is not in dispute that the decree contravenes both public policy and the law, because it is a decree for sale of service inam and, or where it is incontrovertibly established by material on the same footing as the decree itself, in the very suit, the executing court is entitled, as a matter of conscience and its power, to go behind the decree and to refuse to execute it. The rule of constructive res judicata cannot operate to prevent the court from doing so, both because this is an overriding power, and because, in such an instance, it would really be a matter of refusal to infringe the law, and there can be no estoppel against statute.

(38) I would also answer the reference accordingly.

This appeal coming on for hearing for final disposal before Ramaswami J. on 6-4-1960, the Court delivered the following)

(38a) JUDGMENT: On this expression of the Full Bench opinion, viz., that an executing court cannot investigate that the property which has been sold is an inalienable service inam when there is no foundation for it either in the plaint or in the written statement or issues or judgment in the mortgage suit, this Civil Miscellaneous appeal has got to be dismissed and is hereby dismissed.

(39) The learned Advocate, Mr. Champakesa Aiyangar, pressed on me on the other hand that he is in possession of respectable evidence part of which he placed before the executing court and a partition deed, which he produced today and which naturally I am not prepared to look into, to show that the property in question is an alienable service inam and that it was contrary to the public policy to sell and this would enable him to file a separate suit, and that a little time therefore should be given to him to file such a suit, and that till then the executing court may stay its hands and not deliver possession. The result is prima facie reasonable but this is a matter which might be considered by the executing court and I cannot fetter that discretion either way. That an executing court has power to stay its hands for adequate reasons cannot be gainsaid. But whether in the circumstances of this case, it should exercise such a discretion is a matter for the executing court to decide.

(40) The learned advocate, Mr. Ramamurthi, urges that he has got several grounds to show that such a separate suit cannot be filed and secondly that the relief asked for cannot be granted in such a separate suit. But that is not a matter for me to decide. I make no pronouncement either regarding the tenability of the suit or its limitation. This is a matter entirely for the court in which the suit is filed to decide.

(41) The net result is that beyond drawing the attention of the executing court that if it is satisfied that a little time should be given before delivery of possession is made, it would not be beyond its province or powers to grant the same. I do not wish to say anything more. But whether such a discretion should be exercised and on what terms I once again make it clear is entirely a matter for that court to decide.

(42) In the circumstances each party will bear its own costs.

(43) Case remanded.