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The Collector of Broach Vs. Desai Raghunath and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom546
AppellantThe Collector of Broach
RespondentDesai Raghunath and anr.
Excerpt:
bhagdari (bombay) act v of 1862, sections 1, 2 and 3 - (sic) portion of a bhag--application by, collector to set it aside--(sic) ix of 1871 and xv of 1877, schedule ii, article 178. - .....on sales by order of a civil court, but is meant to apply to unlawful sales and alienations of portion of bhags made out of court, or by private individuals. it is under section 2 of the act that the collector is a authorized and bound to move in order to get the process of a civil court set aside or quashed. indeed, it is obvious that it would be a most indecent and unseemly proceeding for a collector to take action under section 3 (even if the could), and proceed 'summarily to remove' a party from possession of property which had been delivered to him by formal process of the civil court.3. as to the point of limitation, which has been somewhat vehemently argued in this case, we are now, on further consideration, of opinion that neither article 178 of schedule ii of act xv of 1877,.....
Judgment:

Pinhey, J.

1. This case is on all fours with Second Appeals 432, 437 and 438 Ante, p. 542 in which Mr. Nagindas Marphatya appeared the defendants, and in which judgment was delivered on the 23rd of August last.

2. To that judgment we have only to add the following remarks with reference to the arguments advanced by Mr. Shantaram Narayan Bondse:

1. We hold that the words in Section 1 of Bombay Act V of 1862--' no portion of a bhag, &c.;, shall be liable to seizure, sequestration, attachment, or sale, by the process of any Civil Court'--mean that no portion of a bhag shall be seized, sequestered, attached, or sold by the process of any Civil Court, and that any such seizure, sequestration, attachment or sale would be absolutely illegal, and, therefore, void.

2. Then Mr. Shantaram argued that after a portion of a bhag has been actually sold by a Civil Court, the Collector should not proceed under Section 2, but under Section 3 of the Act; but we think this argument cannot be allowed for a moment. Section 3 has no bearing on sales by order of a Civil Court, but is meant to apply to unlawful sales and alienations of portion of bhags made out of Court, or by private individuals. It is under Section 2 of the Act that the Collector is a authorized and bound to move in order to get the process of a Civil Court set aside or quashed. Indeed, it is obvious that it would be a most indecent and unseemly proceeding for a Collector to take action under Section 3 (even if the could), and proceed 'summarily to remove' a party from possession of property which had been delivered to him by formal process of the Civil Court.

3. As to the point of limitation, which has been somewhat vehemently argued in this case, we are now, on further consideration, of opinion that neither Article 178 of Schedule II of Act XV of 1877, nor any portion of that Act, has any application to proceedings taken under the Bhagdari Act (Bombay Act V of 1862). Previous to the passing of the Limitation Act, IX of 1871, when any limitation was intended to be prescribed for a proceeding under any Act, the period of limitation was embodied in the Act. See, for example, Section 119 of the Code of Civil Procedure of 1859 which was passed there years before the Bhagdari Act, and Section 214 of Act VI of 1863 which was passed a year after the Bhagdari Act. All such provision as to limitation were repealed by, and re-enacted in, Act IX of 1871. No limitation is prescribed in the Bhagdari Act, and the reason for this is obvious. The preamble to the Bhgdari Act declares it to be necessary, for reasons of State policy, to prevent the alienations of portion of a bhag, and the Act provides that portions of a bhag shall not be sold. If a portion of a bhag be sold, it is a fraud upon the Act. The only person who can get a sale set aside is the Collector. The Collector cannot act until be knows that the Act has been infringed. The collusion of parties or other cause might keep an illegal sale concealed for twenty years. If time ran against the Collector, the Bhagdari Act would be practically ineffectual. Therefore no limitation is prescribed in the Bhagdari Act, and there was no provision as to limitation which could be repealed by, and re-enacted in, Act IX of 1871, or again be re-enacted in Act XV of 1877. We, therefore, hold that no law of limitation applies to proceedings by the Collector under the Bhagdari Act.

3. Following our decision in Second Appeal No. 432 of 1882 Ante, p. 542 we must set aside the orders in the Courts below, and also set aside and quash the sale of the share of Bhagvan Kashi in the bhag mentioned by the Collector, and as applied for by the Collector. Costs in all Courts to be borne by the defendants.


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