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Ragho Chandrarao Kadam Vs. Hanmati Chandrarao Kadam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 230 of 1912
Judge
Reported in(1913)15BOMLR389; 19Ind.Cas.903
AppellantRagho Chandrarao Kadam
RespondentHanmati Chandrarao Kadam
DispositionApplication dismissed
Excerpt:
.....dispossession-application to be made to collector and not to court.;order xxi, rule 100, of the civil procedure code, 1908, has no application to a case where the execution of the decree has been transferred to the collector, and he has acted under the powers conferred on him by the local government under section 70 of the code.;where a person is wrongly ousted or dispossessed under the collector's order, he may apply to the collector and not to the court, complaining of such ouster or dispossession.;the collector executing a decree is not a mere ministerial officer charged with the duty of selling property under the directions of the court, but the whole execution of the decree is transferred to him, and the court cannot interfere or exercise any of the powers conferred on him. -..........the collector in execution of a decree which had been transferred to him under section 320 of the civil procedure code of 1882. on 8th november the collector put the opponent in possession of the property sold. thereupon the applicant applied to the court alleging that he had long been in possession of the property on his own account and not on behalf of the judgment-debtor and complaining that he had been wrongly dispossessed by the auction-purchaser.2. this application was rejected by the subordinate judge on the ground that he had no jurisdiction to interfere with the collector's order.3. it is urged by mr. rele on behalf of the applicant that under order xxi, rule 100 of the civil procedure code the court is bound to make an inquiry, if a person other than the judgment-debtor.....
Judgment:

Rao, J.

1. The opponent purchased certain land at a sale held by the Collector in execution of a decree which had been transferred to him under Section 320 of the Civil Procedure Code of 1882. On 8th November the Collector put the opponent in possession of the property sold. Thereupon the applicant applied to the Court alleging that he had long been in possession of the property on his own account and not on behalf of the judgment-debtor and complaining that he had been wrongly dispossessed by the auction-purchaser.

2. This application was rejected by the Subordinate Judge on the ground that he had no jurisdiction to interfere with the Collector's order.

3. It is urged by Mr. Rele on behalf of the applicant that under Order XXI, Rule 100 of the Civil Procedure Code the Court is bound to make an inquiry, if a person other than the judgment-debtor complains of his dispossession by the auction-purchaser. This rule has no application to a case, where the execution of the decree has been transferred to the Collector and he has acted under the powers conferred on him by the Local Government under Section 70 of the Civil Procedure Code or the corresponding section of the Code of 1882. In the present case the Collector put the auction-purchaser in possession of the property sold under Rule 14 of the Rules made by the Local Government under Section 320 of the Civil Procedure Code of 1882. Under this rule the Collector has the power to order delivery of possession to the purchaser, ' if need be by removing any person who refuses to vacate the same.' If a person is wrongly ousted or dispossessed under the Collector's order, he may apply to the Collector and not to the Court, complaining of such ouster or dispossession; so long as the execution of the decree is in the hands of the Collector he alone can execute it in accordance with the rules made by the Local Government. He is not a mere ministerial officer charged with the duty of selling property under the directions of the Court but the whole execution of the decree is transferred to him and the Court cannot interfere or exercise any of the powers conferred on him : see Keshabdeo v. Radhe Prasad I.L.R. (1888) All. 94 Muhammad Said Khan v. Payag Sahu I.L.R. (1894) All., 228. and Section 70, clause (2), of the Civil Procedure Code.

4. The Subordinate Judge was therefore right in holding that he had no jurisdiction to entertain the application under Order XXI, Rule 100, of the Civil Procedure Code. Rule discharged with costs. The application may be returned to the applicant for presentation to the Collector.


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