1. These two revision petitions can be disposed of by a common order. Both of them arise out of proceedings in execution of a mortgage decree passed by this Court in App. No. 15 of 1973 decided on 12th October, 1977.

2. One Ayyakannu Gounder who died in March-April, 1959, had two wives. His second wife was Thaiyanayaki Ammal. Through his first wife he had three daughters and one son, viz., Lokambal Ammal, Visalakshi Ammal, Kokilambal Ammal and Thangaraj, who predeceased his father. Thangaraj's son Thanikachalam died on 2-2-1976 leaving behind his widow Mallika and three minor sons. Kokilambal Ammal has two sons Ganapathi and Masilamani. Visalakshi Ammal has a son, Radhakrishnan. On 9-1-1961 Thaiyanayaki Ammal executed a mortgage on behalf of herself and as guardian of Thanikachalam for a sum of Rs. 30,000 in favour of Balasubramania Gounder. O.S. 50 of 1969 came to be filed by the plaintiff, Balasubramania Gounder in the Court of the Subordinate Judge of Chidambaram for recovery of Rs. 44,903-60. To this suit Thaiyanayaki Ammal and Thanikachalam were defendants 1 and 2 respectively, Rukmani Ammal, Thanikachalam's mother was the 3rd defendant. Ganapathi, Masilamani and Radhakrishnan the grandsons of Ayyakannu Gounder were defendants 4, 5 and 6 respectively.

Ayyakannu Gounder had executed a will on 29-11-1958 by which he bequeathed his properties to all the defendants except the 3rd defendant. Under the will, the first defendant had been appointed executrix, to carry out the terms of the will. She was directed to take possession of all the properties and perform charities mentioned in the will and also be in management of the properties bequeathed to the minor grandchildren and to give them possession on their attaining majority. Thaiyanayaki Ammal was also appointed guardian of the minor grandchildren, defendants 2 and 4 to 6.

3. Ayyakannu Gounder was indebted to one Muthukrishna Gounder on the basis of a mortgage dated 20-3-1956, for a sum of Rs. 25,000. After the death of Ayyakannu Gounder, Muthukrishna Gounder filed a suit O.S. 90 of 1959 on the file of the Sub Court Cuddalore, and obtained a decree on 4-1-1960 for Rs. 25,889-37. Since in execution of that decree the properties left behind by Ayyakannu Gounder were to be sold, Thayyanayaki Ammal borrowed a sum of Rs. 30,000 from the plaintiff in order to discharge the decretal debt of Muthukrishna Gounder. According to the plaintiff, if the plaintiff had not advanced the loan to Thayyanyayaki Ammal, the properties of Ayyakannu Gounder would have been completely lost to the estate and there was therefore compelling necessity for Thayyanayaki Ammal to raise the loan of Rs. 30,000. Thus, according to the plaintiff, Thayyanayaki Ammal was entitled to execute the mortgage in her capacity as executrix and as representing the estate of Ayyakannu Gounder, and all his heirs and legatees. Therefore, the entire estate would be liable for the amount due on the mortgage in favour of the plaintiff.

4. The trial Court held that the first defendant, Thayyanayaki Ammal, had no power of alienation and that Thayyanayaki Ammal should have obtained sanction of the Court before mortgaging the property. The trial Court also held that the suit mortgage though executed by the first defendant was not valid and supported by consideration and was not binding on the other defendants. With regard to defendants 4 to 6, the trial Court held that the mortgage Ex.A-1 did not comprise any of the properties bequeathed to defendants 4 to 6 and there was no cause of action against these defendants. The trial Court also held that the first defendant had received from defendants 4 to 6 their share of the liability in respect of the decretal debt of Muthukrishna Gounder. As a result of these findings, the suit came to be dismissed.

5. The plaintiff filed an appeal against this dismissal of the suit being App. No. 15 of 1973. This Court held that the mortgage executed in favour of the plaintiff was intended to preserve the estate from being lost once and for all and in executing the mortgage the first defendant had acted in exercise of her paramount power inherent in her as executrix by implication. The Court noticed the fact that the properties mentioned in Schedules A to E in the will were endowed for charitable purposes and that the properties in Schedules G and N were given to the second defendant who was then a minor, out of which the properties in H Schedule was set apart for the second defendant and his male heirs without any power of alienation. As regards the F Schedule properties, the Court found that the first defendant was appointed as the guardian of minor Tanikachalam and she was asked to maintain and educate him and perform the charities. As regards the outstandings this Court found that there was specific recital in Ex.A-2 that Ayyakannu's grandsons, viz., defendants 2 and 4 to 6, should discharge their debts.

Therefore this Court held that the first defendant in order to save the properties had mortgaged them under Ex.A-1 and discharged the decree debt which was allotted to the share of the second defendant by the panchayatdars. Thus, this Court rendered a finding that the first defendant as executrix had acted under Ss.317, 318, 319 and 325 of the Succession Act, and the act of the first defendant cannot be called in question by the legatees in whose interest she had acted. With reference to defendants 4 to 6, this Court observed as follows :

"It was in those circumstances that the first defendant as an executrix acted in exercise of her prerogative power and collected money from defendants 4 to 6 and paid off a substantial portion of the other debts of the deceased. Naturally, therefore, it became necessary for her to avoid further incumbering of the property bequeathed by the testator to legatees other than the second defendant. No doubt, she prudently avoided those properties bequeathed to defendants 4 to 6 for purposes of creating a fresh mortgage which is the subject-matter of the suit. The beneficiaries, who failed to act at a time when they should and were quite discreetly silent when they should speak, cannot take advantage of the situation and avoid the responsibility to pay the mortgage debt. The above case of the executrix satisfactorily establishes her bona r fides and reflects on her prudent management of the estate." *

Consequently, this Court held that defendants 4 and 5 who had paid a sum of Rs. 15,000, defendant 6 who had paid a sum of Rs. 7,975 towards the discharge of the debts, were not necessary parties to the suit and there was no cause of action against them. With regard to defendant No. 3 also this Court held that she had no right under the will and she was also not liable for the suit claim. Consequently, this Court held that the suit was dismissed against defendants 1 and 3 to 6. A decree for the amount claimed in the plaint was passed as against defendant No. 2. The appeal was therefore allowed as against defendant No. 2. She was granted six months time to pay the decretal amount failing which it was directed that the usual decree for sale shall issue.

6. In the preliminary decree, there is no doubt that 57 items of properties were mentioned. These 57 items of properties were also the subject-matter of the final decree for sale. When the final decree was sought to be executed, Mallika, the widow of Thangaraj and her three minor sons filed an application under S.47, C.P.C., contending that they were interested in the properties mentioned in Schedules G and H in the will of Ayyakannu Gounder, and there being no specific decree against them these properties should not be brought to sale. An objection was also raised that the decree itself was a nullity as Thanikachalam had died on the date on which the decree was passed. Another objection raised was that the properties in Schedules G and H were joint family properties in which Ayyakannu could have only a moiety of interest and the petitioners having succeeded to that moiety on the death of Thanikachalam they were entitled to object to the execution of the said decree.

7. The executing Court rejected this objection holding that this Court in App. No. 15 of 1973 had specifically held that the mortgage deed was executed on behalf of the second defendant and the properties of the second defendant were liable to be sold in pursuance of the mortgage decree. The executing Court held that such an objection was never raised before the High Court and with regard to the second objection that the decree was passed in the name of the dead person, the executing Court held that the petitioners who were the heirs of Thanikachalam were also brought on record before the final decree was passed. This last objection is clearly a frivolous objection because the record of App. No. 15 of 1973 will show that Thanikachalam's legal representatives viz., the widow Mallika and three minor children were brought on record on 20th July, 1977, and the appeal came to be decided almost three months thereafter i.e. on 12th October, 1977. The executing Court therefore held that the objection raised did not fall within S.47, C.P.C., and the petition filed under S.47, C.P.C., was not maintainable. This order is challenged in C.R.P. 2654 of 1982.

8. Original defendants 4 and 5 Ganapathi and Masilamani also filed an application under S.47 contending that Items 1 to 19 in their application which came under Schedule B were allotted for charitable purposes and the 20th item mentioned in K Schedule to the will were given to Ayyakannu's grandsons i.e., sons of the three daughters to be enjoyed for life without any right of alienation. They claimed to be in possession of these items and according to them these properties were inalienable, according to the recitals of the will. The executing Court took the view that the High Court had upheld the validity of the mortgage deed and that even if any of the items was burdened with the performance of certain charity, there was no bar for the sale of these items for the realisation of the decretal amount as these items had been mortgaged. The executing Court found that the application was merely intended to delay the execution proceedings and rejected the objection. This order is challenged in C.R.P. 649 of 1982.

9. When both these revision petitions were taken up for hearing and almost about four years had elapsed since these orders were passed, it was verified whether the sale of the properties had not been held. A report was therefore called from the Principal Subordinate Judge of Cuddalore. The Principal Subordinate Judge reported that the properties involved in E.A. 1556 of 1980 (C.R.P. 649 of 1983) comprised in lots 1 to 20 have already been sold. Lots 1 to 6 had been sold on 5-12-1983 and the sale had been confirmed on 8-11-1984, after the disposal of the petition to set aside the sale under O.21, R.90, C.P.C. Lots 7 to 19 were sold on 8-9-1983 and the sale was confirmed on 8-11-1984, after the disposal of the petition to set aside the sale under O.21, R.90, C.P.C. Lot No. 20 had been sold on 20-12-1984 and the sale was also confirmed on 6-12-1985 after the disposal of the petition to set aside the sale under O.21, R.90, C.P.C. When at the hearing it was put to the learned counsel for the revision petitioners that the sale having already been confirmed these revision petitions would really become infructuous because even if these petitions are allowed, the sale which was confirmed in favour of the auction purchaser would not be effected, the learned counsel contended that against the orders of confirmation of sale, two civil miscellaneous appeals are pending in this Court viz., C.M.As. 730 and 731 of 1984, and consequently if these appeals are allowed the sale would automatically be set aside and a decision in these civil revision petitions would then have an effect on the question as to whether the properties were liable to be sold or not. Since the learned counsel for the revision petitioners insisted that both the revision petitions should be disposed of on merits, I am dealing with the petitions on merits.

10. The only contention which has been raised is that the petitioners are entitled to raise the question with regard to the executability of the decree under S.47, C.P.C. The contention is that the suit against defendants 4 and 5 had been dismissed, there is no decree against them and if the right and interest of the mortgagor could alone be brought to sale, the petitioners who are interested in the mortgaged property since the properties are burdened with charity, they were entitled to object in execution proceedings that the properties were not liable to be sold. The argument is that defendants 4 and 5 are now claiming in pursuance of the will of the deceased Ayyakannu and they were therefore entitled to agitate under S.47 to question the saleability of the property. The learned counsel appearing on behalf of the decree-holder has contended that the question as to whether the properties could be sold in execution of the decree or not is not now open in view of the decree of the High Court which specifically refers to 57 items of properties which are liable to be sold.

It is difficult to see how defendants 4 and 5 who are the legal representatives of the deceased Thanikachalam could now raise only question with regard to the liability of the decretal property to sale in execution of the mortgage decree. It is an established proposition of law that the executing Court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is a nullity. Since the decree is of a Court with jurisdiction, the executing Court is bound to execute the decree as it stands. The relief which the revision petitioners in these two revision petitions are substantially asking is that the decree must be so modified as to make it ineffective and inoperative in respect of certain properties. In other words, the argument comes to this i.e., in so far as the properties in respect of which the petitioners are contending that these properties are not liable to be sold, the decree is invalid.

11. The above objection is not open in execution proceedings. The question as to the validity of the decree is not one which can be agitated in execution because it is not a question which relates to the discharge or the satisfaction of the decree. It is only where a decree is passed by Court which lacks inherent jurisdiction to pass the decree that the objection to the validity of the decree may be raised in a proceeding in execution if such objection appears on the face of the record. In Vasudev Dhanjbhai Modi v. Rajabhai Abdul Rehman, 1970 AIR(SC) 1475, 1970 RCJ 716, 1970 RCR 427, 1970 (1) SCC 670, 1971 (1) SCR 66, 1970 (2) MLJ 85, 1995 (2) WLC 99 the Supreme Court dealing with the nature of an objection which can be taken to the validity of a decree in execution proceedings, has observed as follows -

"When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on record, of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record, and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." *

12. It is true that the suit against defendants 4 and 5 had been dismissed. But if the case of defendants 4 and 5 and of the legal representatives of Thanikachalam was that any of the properties which became part of the final decree were not liable to be sold, the remedy was to challenge the final decree. Even so far as defendants 4 and 5 are concerned, though the suit had been dismissed against them, that dismissal was only in respect of their personal liability. But if the preliminary decree also specified the properties that were to be sold, if defendant 2 failed to pay the amount by the date prescribed by the preliminary decree and if defendants 4 and 5 had interest in the property which was expressly included in the schedule to the decree to the extent of those properties or any one of them was directed to be sold, defendants 4 and 5 had clearly a remedy by way of an appeal against the preliminary decree. Clause 4 of the preliminary decree clearly directed that'in default of payment as per Cl. 1 supra the plaintiff (appellant herein) may apply to the Court for a final decree for the sale of the mortgaged property described in detail in the schedule to the decree to the lower Court and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold for the purposes of such sale the plaintiff (appellant herein) shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property'. It was open to defendants 4 and 5 to challenge this part of the preliminary decree, even though the suit against them in respect of the personal claim against them was dismissed.

12-A. Mr. R.S. Venkatachari has relied on a Full Bench decision of this Court in Mohanram v. Sundararamier, (1960) 2 Mad LJ 30 : 1960 AIR(Mad) 377), in which the Full Bench of this Court has held that though the executing Court cannot go behind the decree, there are certain well recognised exceptions to this rule. These exceptions, according to the Full Bench, were that 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 a decree which directs such a sale. These observations have to be read in the light of the facts of that case in which it was established that the lands sought to be sold in execution of the decree were service inam lands and were statutory prohibitions against the sale of the lands. It was on those facts that the Full Bench in that case held that the lands not being saleable the executing Court could refuse to execute the decree.

13. Mr. R.S. Venkatachari contended that when the petitioners were contending that certain properties which are directed by the final decree to be sold could not be sold, the question was essentially one of construction of the decree. He relied on the decision of the Supreme Court in Bhavan Vaja v. Solanki Hanuji, 1972 AIR(SC) 1371, 1973 (2) SCC 40. In para 19 of the judgement the Supreme Court observed as follows.

"It is true that an executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree i

t can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it." * In that case, two questions were debated before the Supreme Court. One was with reference to the identity of the decretal property and the other was whether having regard to the occupancy certificates issued under the Saurashtra Land Reforms Act, it was not open to the decree-holder to ask for possession of some of the lands concerned in the appeal. The first question thus related to the identity of the property which is not the question in the present proceedings. The contention raised in the present proceedings by the original defendants 4 and 5 and heirs of Thanikachalam is with regard to the correctness of the decree which specifically directs 57 items of the properties to be sold in execution of the mortgage decree. There is no dispute with regard to the identity of the property. The dispute is whether the decree in respect of some of the properties is a valid decree. Such a question cannot be said to relate to the construction of the decree. In so far as the second question is concerned, the Supreme Court had held that the Civil Judge, Surendranagar who had tried the applications of the appellant had held on that issue against the judgement-debtors and that that part of the order was not challenged. The Supreme Court further held that whether correct or not that order was binding on the parties to the litigation. This decision of the Supreme Court therefore is of no assistance to the petitioners. 14. In this view of the matter it is obvious that the objections raised are wholly frivolous and were rightly rejected by the executing Court. Thus, both the revision petitions fail and are dismissed with costs. Costs Rs. 500/-. Petitions dismissed.