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Pita Moti Vs. Chunilal Harakhchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 354 of 1905
Judge
Reported in(1907)9BOMLR15
AppellantPita Moti
RespondentChunilal Harakhchand
Excerpt:
.....in court of the decretal amount and five per cent of purchase-money-refusal to set aside the sale-appeal-confirmed sale can be set aside-collector's power to set aside the sale.;c, a decree-holder, in execution of his decree, attached certain properties belonging to his judgment-debtor. h, another decree-holder against the same judgment-debtor, applied to execute his decree and prayed for rateable distribution under section 295 of the civil procedure code, 1882. the execution proceedings were transferred to the collector under section 320 of the civil procedure code. the properties were sold by the collector in execution of c's decree. within thirty days of the sale, the judgment-debtor applied under section 310 a of the civil procedure code to set aside the sale and deposited in..........under chapter xix of the code of civil procedure.2. the facts are briefly these: the original decree-holder chunilal harakchand in execution of his decree attached certain properties; and the four survey numbers, which are the subject-matter of the present application, were sold on the 19th of july 1904 for rs. 840.3. this sale was carried out by the collector to whom the decree had been transferred in accordance with section 320 of the code of civil procedure.4. within thirty days from this sale the judgment-debtor pita walad moti, the present appellant before us, applied to the court under section 310 a to set it aside. that section required as a condition precedent that he should deposit in court for payment to the purchaser a sum equal to five per cent of the purchase money and.....
Judgment:

Lawrence Jenkins, C.J.

1. This case, which comes before us by way of second appeal, arises out of an application under Section 310 A to set aside a sale of property sold in execution under Chapter XIX of the Code of Civil Procedure.

2. The facts are briefly these: The original decree-holder Chunilal Harakchand in execution of his decree attached certain properties; and the four survey numbers, which are the subject-matter of the present application, were sold on the 19th of July 1904 for Rs. 840.

3. This sale was carried out by the Collector to whom the decree had been transferred in accordance with Section 320 of the Code of Civil Procedure.

4. Within thirty days from this sale the judgment-debtor Pita walad Moti, the present appellant before us, applied to the Court under Section 310 A to set it aside. That section required as a condition precedent that he should deposit in Court for payment to the purchaser a sum equal to five per cent of the purchase money and for payment to the decree-holder, amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which might, since the date of such proclamation of sale, have been received by the decree-holder.

5. There is no question before us that those sums were deposited. But notwithstanding this the Subordinate Judge refused to set aside the sale though the section prescribes that the Court shall pass an order setting aside the sale. The ground on which he so refused was that inasmuch as there was another decree-holder who had taken action under Section 295, it was incumbent on the judgment-debtor to pay into Court a sum sufficient to answer his claim.

6. It appear s to us that in so deciding the learned Judge disre garded the express terms of the section.

7. The judgment debtor appealed to the District Judge, who however dismissed the appeal on the ground that no appeal would lie.

8. Thereupon the judgment debtor presented this second appeal to this Court and he has now brought before us as respondents the original decree holder, the auction-purchaser and the decree-holder who took action under Section 295. Of these throe respondents only the original decree-holder and the auction purchaser have appeared.

9. The first question that arises is Avhether or not the appeal lies.

10. There is one case decided by this Court, Murlidhar v. Anand Rao ILR (1900) 25 Bom. 418 : 3 Bom. L.R. 100. in which it was laid down generally that an appeal lies from an order passed under Section 310 A, refusing to set aside a sale.

11. It may perhaps be a question whether the proposition can be correctly stated in this unqualified form.

12. But however that may be, it is, to think, established by a series of decisions that an appeal will lie from an order under Section 310 A, where the case falls under Section 244 (c) of the Code of Civil Procedure.

13. Then can we say that the question arising here was one between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof?

14. That a question under Section 310 A may be one relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof, is now established beyond all controversy.

15. Can it then be said that the question arises between the parties to the suit ?

16. Now we have already indicated the nature of the contention. It was that the judgment-debtor should have paid into Court not merely the amount specified in the proclamation of sale, but also an amount not specified in the proclamation, that is to say, an amount in respect of the claim of Hajarimal, the judgment-creditor who had taken action under Section 295.

17. This contention implies that sums paid in under Section 310 A are subject to the operation of Section 295 ; and, if that were a sound contention, then the result would be that the amount paid in would not meet in full the claim of Chunilal the original decree holder.

18. Therefore it is clear that a question arose between the plaintiff and the defendant, that is to say, between the parties to the suit; and this point was actually urged by the pleader who appeared for the decree-holder.

19. Therefore the order was one within Section 244, and, as such, subject to appeal.

20. But then it is said that though this may be true as between Chunilal and the judgment-debtor, it does not represent the position as between the auction-purchaser and the judgment debtor.

21. But the answer to that appears to us to be the course of procedure followed where the decree-holder and the purchaser are both concerned and in reference to this it has been said by the Privy Council in Prosunno Goomar Sanyal v. Kali Das Sanyal that 'when, a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result, has never been held a bar to the application of the section, i.e., Section 244.'

22. Therefore we think that this objection cannot be sustained.

23. Then it has been said that inasmuch as the execution proceedings had been referred to the Collector, Section 310 A had no application.

24. Now the transfer to the Collector was under Section 320 of the Code of Civil Procedure and that section provides that the Local Government may, with the sanction of the Governor-General in Council, declare by notification in the official Gazette that in any local area the execution of decrees should be transferred to the Collector and that the Local Government may from time to time prescribe rules for the transmission of the decree from the ' Court to the Collector and for regulating the procedure of the Collector and his subordinates in executing the same and for retransmitting the decree from the Collector to the Court. Then the section provides as follows:-'Rules under this section may confer upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector, including the powers of the Court under Sections 294 and 312. and may provide for orders passed by the Collector or any gazetted subordinate of the Collector, to orders passed on appeal with respect to such orders being subject to appeal to and revision by superior revenue authorities as nearly as may be as the orders passed by the Court or orders passed on appeal with respect to such orders, would be subject to appeal to and revision by appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector.'

25. 'A power conferred by the rules upon the Collector or any gazetted subordinate of the Collector, or upon any appellate or revisional authority, shall not to exercised by the Court or by any Court in the exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court.'

26. The Code, however, confers no power on the Collector to set aside a sale under Section 310 A.

27. Nor is there any rule vesting that power in the Collector. We say this notwithstanding that it was urged before us by Mr. Patwardhan that the Rules 16 and 17 at page 403 of the Local Rules and Orders made under Enactments applying to Bombay had the effect of vesting the Collector with power to entertain these applications. His argument appears to have been that Rule 17 necessarily implied that the Collector had the power.

28. That rule provides that 'if any application to set aside a sale be made within the time limited by law to the Collector or other officer aforesaid, he shall refer the applicant to the Civil Court.'

29. Apart from the fact that the rule was passed before Section 310 A came into existence, to think it is clear that it cannot be said ' it implies that the Collector had any power to set aside a sale. In fact the very terms of the rule preclude such a contention.

30. When an application is made to set aside the sale, what is incumbent on the Collector under the rule is to refer the applicant to the Civil Court; and it will be perceived from that part of Section 320 which we have already quoted that the power conferred by the rules upon the Collector shall not be exercisable by the Court: If the matter be referable to the Civil Court it necessarily implies that the power has not been conferred by the rules on the Collector.

31. Then reliance has been placed on a decision in Sheo Prasad v. Myhammad Mohsin Khan ILR (1902) I.L.R All. 167 the result of which, Mr. Patwardhan contends, is that when once the execution of a decree is transferred to the Collector, then the judgment-debtor is deprived of the benefit of Section 310 A of the Code of Civil Procedure.

32. We cannot believe that this was intended nor as we read the Civil Procedure Code is that its effect and we think the power to . act under Section 310 A continues notwithstanding a transfer of the execution to the Collector.

33. The only question is by whom that power is to be exercised. If the power has by rules been vested in the Collector, then it is exercisable by him and not by the Court. If that power has not been conferred on him, then, in our opinion, the power must continue still to be exercisable by the Court.

34. The next point urged is that the judgment-debtor cannot apply under Section 310 A, because the sale has already been confirmed by the Collector. But not only was the application made by the judgment debtor before the sale was confirmed, but there is nothing in Section 310 A which precludes the Court from setting aside the sale merely because it has been confirmed.

35. We therefore are of opinion that in this case an appeal lies and that it was erroneous on the part of the Judge of the subordinate Court to hold that it was incumbent upon the judgment debtor to deposit in Court anything except that for which Section 310 A has made provision. The judgment debtor deposited all that the section required of him and all its conditions have been performed. We are therefore of opinion that the judgment-debtor was entitled to have an order under that section setting aside the sale.

36. We therefore reverse the decree of the lower Court and direct that the sale be set aside and the appellant get his costs throughout.


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