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Piraji Chandaji and anr. Vs. Shankarappa Ayyappa Goudar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 443 of 1953
Judge
Reported inAIR1955Bom337; (1955)57BOMLR218; ILR1955Bom649
ActsCode of Civil Procedure (CPC), 1908 - Sections 68, 70 and 151 - Order 21, Rules 89, 90 and 91
AppellantPiraji Chandaji and anr.
RespondentShankarappa Ayyappa Goudar
Appellant AdvocateN.M. Hungund, Adv.
Respondent AdvocateT.S. Jahagirdar, Adv.
Excerpt:
- - it is well' established that when a court orders a sale and the sale is carried out otherwise than in accordance with its order or direction, the court has inherent jurisdiction to set aside the sale although the cast may not fall under order 21, rule 89, 90 or 91. but what mr, hungund says is that that inherent power could only be exercised by the civil court when the decree has not been transferred to the collector, and once the decree is transferred to the collector, then the jurisdiction of the court to interfere with that sale and set aside the sale cornea to an end. ' therefore, the jurisdiction of the collector is clearly confined to sell the property which he has been ordered to sell by the civil court......collector effected the sale on 2-1-1948. instead of selling the life interest of the watandar the collector sold the absolute interest of the watandar to another watandar.on 19-1-1948, the judgment-debtor applied to set aside the sale 011 various grounds. the executing court made an order on that application setting aside the sale. the judgment-creditor appealed against that decision and the lower appellate, court partly varied the order of the executing court setting aside the sale only with regard to the sale by the collector of the absolute interest of the watandar and confirming the sale with regard to the three houses. it is against that order that this revision application is preferred.2. now, mr. hungund's contention is that once the decree is transferred to the collector under.....
Judgment:
ORDER

1. The petitioner obtained a decree for Rs. 1,050 on 22-8-1934, against the opponent. In 1937 he filed a darkhast for execution of the decree and prayed that three houses belonging to his judgment debtor and also his life interest in certain Watan lands in Survey No. 19/1 should be sold. The execution of the decree was transferred to the Collector under Section 68 and the Collector effected the sale on 2-1-1948. Instead of selling the life interest of the Watandar the Collector sold the absolute interest of the Watandar to another Watandar.

On 19-1-1948, the judgment-debtor applied to set aside the sale 011 various grounds. The executing Court made an order on that application setting aside the sale. The judgment-creditor appealed against that decision and the lower appellate, Court partly varied the order of the executing Court setting aside the sale only with regard to the sale by the Collector of the absolute interest of the Watandar and confirming the sale with regard to the three houses. It is against that order that this revision application is preferred.

2. Now, Mr. Hungund's contention is that once the decree is transferred to the Collector under Section 68, the civil Court has no jurisdiction to set aside the sale. The one undisputed fact in this case is that the Collector sold in execution of the decree something different from what he was ordered to sell by the civil Court, and the question is whether under these circumstances the Court has jurisdiction under Section 151 to set aside the sale. It is well' established that when a Court orders a sale and the sale is carried out otherwise than in accordance with its order or direction, the Court has inherent jurisdiction to set aside the sale although the cast may not fall under Order 21, Rule 89, 90 or 91.

But what Mr, Hungund says is that that inherent power could only be exercised by the civil Court when the decree has not been transferred to the Collector, and once the decree is transferred to the Collector, then the jurisdiction of the Court to interfere with that sale and set aside the sale cornea to an end. In order to decide this contention one must consider what is the jurisdiction of the Collector with regard to decrees that have been transferred to him for execution. It is clear that the1 jurisdiction of the Collector must be strictly construed, inasmuch as the jurisdiction conferred upon him ousts the jurisdiction of the civil Court.

Turning first to Section 68, Civil P. C., that sectionprovides: ,,

'The Provincial Government may declare, by notification in the official 'Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular land of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector.'

Now, this is a decree in which the Court hasordered immovable property to be sold and that isthe decree which is transferred to the Collector,and with regard to such a decree the Collector hasI been given jurisdiction to carry out the sale., Whenwe turn to Schedule 3, Rule 1 provides: 'Where theexecution of a decree has been transferred to the Collector under Section 68, he may' -and then we have cls. (a), (b) and (c) and the material clause is (c) ''sell the property ordered to be sold or so much thereof as may be necessary.' Therefore, the jurisdiction of the Collector is clearly confined to sell the property which he has been ordered to sell by the civil Court. In selling that property his jurisdiction is exclusive and the Court cannot interfere with that jurisdiction. But it is clear that he has no jurisdiction to sell property other than the property ordered to be sold by the civil Court.

In this case the darkhast of the judgment-creditor himself wanted only the life interest of the Watan-dar to be sold and the decree was transferred to the Collector in order to sell that life interest. There-lore the ambit of the jurisdiction of the Collector was to effect the sale of the life interest of the Watandar. In selling the absolute interest of the Watandar he travelled outside that ambit, and the question is whether the civil Court had jurisdiction to set aside the sale when the Collector had exceeded his jurisdiction.

3. Now, it seems to me that it is always Open to a civil Court to see that its orders are carried out, and apart from any provision in the Code the Court can always exercise its inherent powers under Section 151 to see that its directions and orders are complied with. I sec no difference in principle between the case of an order of the Court being carried out by an officer of the Court an3 an order being carried out by the Collector in whom a limit-ed jurisdiction has been vested. If the Court can set aside the sale under a decree which has not been transferred to the Collector where the sale is not in conformity with its orders or directions, in my opinion the Court can equally set aside the sale when the sale is by the Collector and the Collector has not acted in conformity with the orders directions given by the Court. .

It would result in a very extraordinary situation if the Court was considered to be helpless if the Collector, failing to comply with the mandate of the Court, sold some property of the judgment-debtor which he was not asked to sell and which lie had no jurisdiction to sell. This is a simple case where the Court refuses to confirm a sale which has been effected contrary to its own directions and orders. It is not a case where the sale has been effected in accordance with its orders and directions and the Court assumes jurisdiction to interfere with that sale. Once it is conceded, as it must be conceded in this case, that the Collector had no jurisdiction and no authority to sell what he did sell, it is difficult to understand how the power of the Court to refuse to countenance such a sale or to sanction or confirm such a sale can be taken away.

4. Therefore, in my opinion, the learned Districtjudge was right in the view that he took that tothe extent the Collector sold the absolute interestof the judgment-debtor he was acting without jurisdiction and the sale which he effected was no saleat all in law and the Court had jurisdiction underits inherent powers to set aside the sale. Rule discharged with costs.

5. Rule discharged.


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