1. A decree was passed against the petitioners by the Kumta Court and was transferred to the Honavar Court. On September 10, 1924, the judgment-debtors' right, title and interest were put up for sale by the Mamlatdar and were purchased by the opponent, who paid twenty-five per cent deposit, but failed to pay the balance. On September 10, 1925, the petitioners-judgment-debtors applied to the Kumta Court to set aside that sale. That application was rejected, and a resale was held by the Mamlatdar of Honavar on December 10, 1925, which resulted in a deficiency of the price realised at the first sale by the opponent. The Mamlatdar sent the papers to the Collector, who returned them to the Subordinate Judge. The judgment-debtors applied in 1927, under Order XXI, Rule 71, of the Code of Civil Procedure, to recover the deficiency from the opponent defaulting purchaser of the first sale.
2. Two main objections were taken in the trial Court by the opponent purchaser. Firstly, that there was misdescription of the property in the proclamation of the first sale inasmuch as that proclamation did not clearly state that the interest of the judgment debtors was one-third and he was thereby misled. Secondly, the application lay to the Collector and not to the Court. The trial Court rejected both the contentions and allowed the application of the judgment-debtors to recover the deficiency from the purchaser. In appeal, the learned District Judge agreed with the trial Court on the first point but differed on the point of jurisdiction, holding that the application lay to the Collector and not to the civil Court. He, therefore, set aside the order of the trial Court and dismissed the application. The judgment-debtors apply in revision.
3. It is argued for the judgment-debtors that power under Order XXI, Rule 71, Civil Procedure Code, was not expressly conferred on the Collector by any rules made by the local Government under Sections 68 to 70 of the Code of Civil Procedure, and the civil Court, therefore, had jurisdiction, particularly after the Collector had returned all the papers of execution to the Court. It is contended for the opponent-purchaser that under the wording of Rule 71, the omission to state that the judgment-debtor's interest was confined to one-third was a material irregularity which misled him and entitled him to refuse to complete the amount. Other grounds are also urged, such as that the certificate was not obtained before the present application.
4. On the question of jurisdiction, under Rule 71 'Any deficiency...shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be, by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable'. Clearly this deficiency is not necessarily recoverable by the officer holding the sale. The rules under Sections 68 to 70 made by the focal Government are published at pages 102 to 106 of the High Court Manual, and they do not expressly empower the Collector to recover such amount. In the case of disputes arising in execution, powers ordinarily rest with the executing Court unless they are excluded under Section 70, Clause 2, by the powers conferred on the Collector. The wording of Rule 71 of Order XXI, Civil Procedure Code, appears to me clear that the Court has jurisdiction to order recovery of the deficiency of the price from the defaulting purchaser, and that the Court and not the Collector has jurisdiction. For an instance of exercise of such a power under Order XXI, Rule 71, Civil Procedure Code, by the Court, even in cases where the property has been sold by the Collector, I may refer to Rajacharya v. Ghemanna ILR (1920) 45 Bom. 223, 22 Bom. L.R. 1193. Of the cases quoted by the learned District Judge Mr. Oka, Ragho v. Hanmati : (1913)15BOMLR389 refers to Order XXI, Rule 100, and not to Rule 71, Civil Procedure Code, and is, therefore, not relevant. The second, Rudrappa v. Bashettappa (1927) 30 Bom. L.R. 465 relates to Order XXI, Rule 89, and applications to adjourn the sale. In this view, it is not necessary to refer to other cases, such as Order XXI, Rule 72, or power delegated to the Collector to give permission to the decree-holder for leave to bid at the auction sale. Such an application lies to the Collector and not to the Court, whose power is excluded by Section 70, Clause 2, Civil Procedure Code: Shriniwas Appacharya v. Jagadevappa ILR (1918) 42 Bom. 621, 20 Bom. L.R. 708
5. On the other points, viz., the defect in the proclamation of sale, it is open to the auction-purchaser to raise the point in these proceedings, and if a material defect in the proclamation is proved the auction-purchaser may escape liability: Gangadas Dayabhai v. Bai Suraj ILR (1911) 36 Born. 329, 14 Bom. L.R, 250. In that case, however, the right, title and interest of the defendant Were specified when in reality the plaintiff's interest was to be sold. In the present case, the right, title and interest of the judgment debtors were specified. There was no misdescription. There was at the most a lacuna in that it did not expressly state that this interest was confined to one-third. It is not, in my opinion, sufficient to entitle the auction-purchaser to infer that the judgment-debtors were the sole owners and had the entire title to the property. This ground was, therefore, rightly disallowed.
6. The other grounds set up for the auction-purchaser were not taken in the lower Courts. The deficiency is not disputed nor was it urged that the certificate of the officer holding the sale was not on the record. Order XXI, Rule 71, Civil Procedure Code, is mandatory, and the Mamlatdar holding the re-sale was bound in law to certify the deficiency. Moreover, I am of opinion that if the auction-purchaser had discovered this defect after he had paid the twenty-five per cent, he could have immediately brought the matter to the notice of the officer holding the sale with a request that the proclamation of sale should be amended or that the necessary addition should be made to the proclamation of sale, although I do not go so far as to say that because he did not do so he is therefore precluded from raising the contention in this Court. At the same time, had he brought the matter to the notice of the officer holding the re-sale, the necessary addition could have been made. I am of opinion, therefore, that on the present facts the Court had jurisdiction and the auction-purchaser is liable for the deficiency of the price.
7. The application is allowed, the order of the lower appellate Court is set aside, and the order of the trial Court restored with costs throughout on the opponent auction-purchaser.