1. It is unnecessary in this case to express any final opinion as to whether a second appeal lies to this Court because even if no appeal lay against the order made by the First Class Subordinate Judge on the 25th of November 1915 it would be open to us to consider the question of jurisdiction, which arises in the case, under Section 115 of the Civil Procedure Code. We have, therefore, considered the question of jurisdiction on its merits.
2. In this case an order was made on the 15th November 1915 directing execution of the decree to be transferred to the Collector. Subsequently an application was made by the mortgagee-defendant for permission to bid at the auction and also for permission to set off' the decretal amount against the sale price. The Court was of opinion that it had no power to grant any such permission after the execution was transferred to the Collector.
3. It is argued before us that even when the execution of the decree is transferred to the Collector, the Court has the power under Rule 72 of Order XXI to entertain such an application and to grant the necessary permission if a case for such permission is made out. It seems to me, however, that the operation of this rule in this case is excluded in virtue of Section 70, Sub-section (2) of the Code of Civil Procedure which provides that a power conferred by rules made under Sub-section (1) upon the Collector shall not be exercisable by the Court. In the present case we have Sub-clause 16 of Clause 91 at page 105 of the Manual of Civil Circulars which distinctly provides that the power conferred by Section 294 of the Code of Civil Procedure, (that is by Rule 72, Order XXI), may be exercised by the Collector subject to certain conditions; and one of the conditions is that the decree-holder must agree to pay the purchase money to the Collector or other officer executing the decree if he becomes the purchaser. This rule is in clear conflict with Rule 72, Order XXI, and as the power is specifically conferred upon the Collector subject to the condition which I have already mentioned, I feel clear that the civil Court has no power to exercise the discretion which is vested in it under Rule 72 after the execution of the decree is transferred to the Collector.
4. There is apparently no power given to the Collector under this Rule to allow a set-off; but that is a point with which we are not concerned. The only point that we have to consider is whether the civil Court has any power under the circumstances of the case to allow permission to the decree-holder to bid and to claim a set-off. It is clear that the Court has no such power after the execution is transferred to the Collector. I would, therefore, dismiss the appeal with costs.
1. In my judgment, liberty to bid at the auction-sale and liberty to set oil' the amount of the decree against the purchase money are powers within the meaning of Section 70, Sub-section (1) (b) of the Civil Procedure Code, as being 'powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector'. If, therefore, the Local Government have made rules in that respect, then under Section 70, Sub-section (2) a Civil Court cannot exercise any power so transferred.
2. Now turning to the rules which have been made under Section 70, one finds that the power to bid is dealt with by the rule set out at p. 105 of the Manual of Civil Circulars, Ch. II, para 91, Sub-section 16 (1), for that Rule expressly transfers to the Collector the power to give liberty to bid, but adds a condition in Sub-clause (c) that the decree-holder is to pay the purchase-money to the Collector. In my opinion that condition in Sub-clause (c) expressly negatives the right to set off the purchase money, That being so, I think that on these rules the Collector has no power to allow a sot-oft'. I am also satisfied that under the above circumstances, the Civil Courts in the present case have no power either to give liberty to bid at the auction-sale or to set off the decretal amount.
3. As regards Order XXI, Rule 72, which has been referred to, liberty to set off only arises if the decree-holder has got the permission of the Court to bid at the auction. No liberty to bid was given by the Court nor indeed could it be given. On that ground alone it follows that the Court has no power to give liberty to set off under Order XXI, Rule 72 (2). I say that because the pleader for the appellant stated in the course of his argument that at some period or another which was not made clear to mo the Collector did in fact give liberty to bid at the auction, although he declined liberty to set off as he thought he had no power so to do. The fact that the liberty to bid was given by the Collector negatives any power of the Court under Order XXI, Rule 72 (2) to allow a set-off, for that order contemplates both liberties being given by the same authority, viz., the Civil Court, which in fact was not the case here.
4. In my opinion, therefore, this appeal ought to be dismissed with costs.