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Dattatraya Melgirigowda Patil and ors. Vs. Sidlingappa Ishwarappa Bulla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal Nos. 94 and 97 of 1959
Judge
Reported inAIR1963Mys179
ActsCode of Civil Procedure (CPC) , 1908 - Sections 70 and 122 - Order 21, Rules 89, 90, 91, 91A and 92
AppellantDattatraya Melgirigowda Patil and ors.
RespondentSidlingappa Ishwarappa Bulla and ors.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateK.S. Savanur, Adv. for Respondent I
Excerpt:
- karnataka zilla parishads, taluk panchayat samithis mandal panchayat & nyaya panchayaths act, 1983. section 273: [ram mohan reddy,j] appeal under - grant in favour of the petitioner- petitioners brother-in-law, the president of mandal panchayat misused the office of the president and granted a site belonging to the mandal panchayat legality of grant being questioned held, having regard to the fact that the petitioners brother-in-law was the president of mandal panchayat, there can be no more doubt that the grant of land belonging to the mandal panchayat was made to a person interested. such a grant in any event cannot but be said to be a fraud in exercise of power, without sanctity of law, invalid, wholly void and unsustainable. in the circumstances, merely because an application is.....t.k. tukol, j.1. the appellants in the two cases filed miscellaneous application nos. 18 and 19 of 1957 in the court of the civil judge, senior division, bharwar, under order xxi rule 90 of the code of the civil procedure, praying for setting aside the auction sale held by the mamlatdar on 22-11-1957 in execution of a decree in special darkhast no. 172 of 1935 transferred to the collector for sale of certain lands attached in the execution proceedings. the petitioners alleged that there were several illegalities and material irregularities in the conduct of the sale and that as a consequence thereof, they (petitioners) had suffered substantial loss. the decree-holder resisted the applications by denying the alleged illegalities and irregularities and questioned the competency of the.....
Judgment:

T.K. Tukol, J.

1. The appellants in the two cases filed Miscellaneous Application Nos. 18 and 19 of 1957 in the Court of the Civil Judge, Senior Division, Bharwar, under Order XXI Rule 90 of the Code of the Civil Procedure, praying for setting aside the auction sale held by the Mamlatdar on 22-11-1957 in execution of a decree in Special Darkhast No. 172 of 1935 transferred to the Collector for sale of certain lands attached in the execution proceedings. The petitioners alleged that there were several illegalities and material irregularities in the conduct of the sale and that as a consequence thereof, they (petitioners) had suffered substantial loss. The decree-holder resisted the applications by denying the alleged illegalities and irregularities and questioned the competency of the executing Court to entertain the petitions for setting aside the sale held by the Mamlatdar. In support of his contention the decree-holder relied upon the decision of this Court in Veerabhadrappa Saagappa v. Sakhalchand, (1959) 37 Mys LJ 129. The learned Civil Judge took the view that the decision clearly supported the decree-holder and dismissed the applications on 3-3-1959 observing that the only remedy available to the petitioners was to institute a suit for setting aside the sale.

2. The petitioners have preferred these appeals challenging the correctness of the view taken by the executing Court. Mr. Datar appearing for the appellants, submitted that the decision of this Court in 37 Mys LJ 129 was not applicable to the facts of this case and that even if it were held to be applicable, it required reconsideration. When these appeals came up for hearing before a single Judge of this High Court, his Lordship directed the records to be placed before the Chief Justice for necessary orders, as he thought it desirable in view of the contentions taken up by the appellants, that the appeals should be heard by a Division Bench. That is how these two appeals have come up for hearing before this Bench.

3. So the main question that arises for consideration in these two appeals is whether the sale of agricultural lands held by the Collector or by his subordinate, in execution of a decree transferred to the Collector, can be challenged by an application under Order XXI Rule 90 of the Code of Civil Procedure made to a Civil Court?

Order XXI Rule 90 the Code of Civil Procedure lays down that :

'Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it :

Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.'

The executing Court has not discussed the question of jurisdiction of a Civil Court to entertain a petition for setting aside the sale in the light of these provisions and the other rules and Orders in force in the Bombay Area but has solely rested its order for dismissal of the applications on the decision of this Court.

4. Before discussing the applicability of the decision in Veerabhadrappa's case, 37 Mys LJ 129 to the facts of the present case, it would be necessary to refer to the relevant provisions of law operating in the Bombay area in regard to the execution of decrees passed by Civil Courts, by the Collector or his subordinates.

Section 68 of the Code of Civil Procedure empowers the State Government to 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 kind of 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. In exercise of this power, the Government of Bombay issued Notifications from time to time laying down rules prescribing the procedure to be followed by the Collector or his subordinates in execution of a civil Court decree transferred to him and defining the powers of the Collector or his subordinates in relation to such execution proceedings. These rules are contained in Chapter II of the Civil Manual issued by the High Court of Judicature, Bombay. The relevant provisions are to be found from page 98 onwards in Volume I of the Civil Manual (1950 Edition).

According to these provisions, if a Civil Court is satisfied that a decree is one to which the provisions of the Notifications apply, it shall cause the execution proceedings to be transferred to the Collector. Rule 15 deals with the powers of the executing Officer while Rule 16 relates to an application to set aside the sale. These Rules which are relevant to the points at issue read as follows :

'15. Powers of executing Officers : The following powers are conferred on Collectors and on gazetted officers subordinate to a Collector to whom a decree is transferred under Rule 2 :

(a) the power specified in Sub-rule (i) of Rule 72 of Order XXI of the First Schedule to the said Code : provided that the Collector or other officer aforesaid, to whom an application for such permission may be made shall not grant such permission unless the decree-holder --

(i) satisfies him that the application is made in good faith, and that the judgment-debtor is not a minor;

(ii) undertakes that he will not himself or through any other person bid or purchase for a sum less than such amount as the Collector or other officer granting the permission, having regard to the fair market value of the interest to be sold may determine, and that the permission shall be subject to this condition;

(iii) agrees that if the decree-holder or any one on his behalf becomes the purchaser, the purchase money shall be paid to the Collector or other Officer executing the decree unless the decree-holder produces a certificate under Rule 85-A of Order XXI of the Civil Procedure Code that he is entitled to a set off against the purchase money;

(b) the powers specified in Rules 83 and :86 and Sub-rule (i) of Rule 92 of Order XXI of the First Schedule to the said Code.

16. Application to set aside sale: If any application to set aside the sale under Order XXI, Rule 89, 90 or 91 of the Civil Procedure Code, and in the case of an application under Rule 89, the deposit as required by that rule, be made within the time limited by law to the Collector or other officer aforesaid, he shall accept such application and deposit, and forward such application and the deposit, if any, to the Civil Court, and inform the applicant accordingly.'

Besides these provisions, the provisions contained in the third Schedule define the powers of the Collector in regard to the execution of decrees transferred to him under Section 68 of the Code of Civil Procedure. These powers specially enable the Collector to postpone the sale in order to enable the judgment-debtor to raise the amount of decree, by letting the immovable property in perpetuity or for a term on payment of premium or by mortgaging the whole or part of the property or by selling such portion as is necessary for satisfying the decretal claim. The provisions also enable the Collector to ascertain the amount of the decree and the extent of the immovable property available for sale and to refer to the District Court the question of ascertainment of decretal debts due from the judgment-debtor whose property is ordered for sale, and to prepare a scheme for the liquidation of decrees for payment of money. The Collector is also empowered to let out the property or undertake its management for the purpose of realising money to satisfy the decretal claim. It is significant to note that the Collector is bound under paragraph 9 of the Schedule to render accounts to the Civil Court. Paragraph 10 prescribes the manner in which a sale is to be conducted.

Of the provisions contained in that Schedule, paragraph II is important as it restricts the power of the Civil Court to issue process against any property forming the subject-matter of the execution proceeding transferred to the Collector. That paragraph reads thus :

'II (1) So long as the Collector can exercise or perform in respect of the judgment-debtor's immovable property, or any part thereof, any of the powers or duties conferred or imposed OB him by paragraphs I to 10, the judgment-debtor or his representative in interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector, nor shall any Civil Court issue any process against such property or part in execution of a, decree for the payment of money.

(2) During the same period no Civil Court shall issue any process of execution either against the judgment-debtor or his property in respect of any decree for the satisfaction whereof provision has been made by the Collector under paragraph 7.

(3) The same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived.'

The ratio of this paragraph is that the Civil Court will not be competent to issue any process against the immovable property or any part thereof in respect of which the Collector is empowered to exercise any of his powers or duties under paragraphs 1 to 10. The Civil Court cannot also issue any process of execution either against the judgment-debtor or his property in respect of the decree for the satisfaction whereof provision has been made by the Collector under paragraph 7 of that schedule.

5. A close study of the provisions referred to above will disclose that the Civil Court is debarred from either issuing a process against the immovable property forming subject-matter of the execution petition or issuing process against the judgment-debtor or his representative, or against the property or any part thereof in respect of which provision has been made by the Collector for realisation of the decretal dues by leasing, mortgaging etc. as provided under paragraph 7 of the Schedule. The rules framed by the Government do not, however, confer upon him all the powers of the Civil Court in regard to execution of decrees transferred to him. Rule 15 quoted above empowers him to exercise the power specified in Rule 72 (1) of Order XXI of the Code to grant permission to the decree-holder to bid or purchase the property as also the power under Rule 85-A of Order XXI framed by the Bombay High Court, under which the purchaser can be permitted to claim a set off against the purchase money.

The other powers conferred by that rule are those under Rules 83, 86 and 92 (1) which respectively enable him to postpone the sale to enable the judgment-debtor to raise the amount of the decree, to forfeit to the Government the deposit of the portion of purchase money made by the auction-purchaser, in default of his payment of the full amount within the prescribed time and order resale, and, to confirm the sale in conformity with the provisions contained in Rule 92 (1) of Order XXI, Rule 16 which is pertinent to the point at issue, provides that if an application to set aside a sale is made to him under Order XXI Rule 89, 90 or 91 of the Code of Civil Procedure, he shall accept such application and deposit (under Rule 89) and forward such application and the deposit, if any. to the Civil Court and inform the applicant accordingly.

The obligation placed on the Collector by Rule 16 is merely to accept the application and forward it to the Civil Court, and not to enquire into the merits of the case and decide whether the sale was liable to be set aside on any of the grounds mentioned in any of the three aforesaid rules. In substance, neither the provisions contained in the third Schedule of the Code of Civil Procedure nor the powers conferred on the executing officers by the rules framed by the Government under Section 70 of the Code of Civil Procedure empower the Collector to enquire into the application made for setting aside a sale; his duty is merely to transfer the same to the Civil Court. This position is further emphasised by Rule 91-A of Order XXI framed by the High. Court of Bombay in exercise of its powers under Section 122 of the Code. That rule reads as follows :

'Where the execution of a decree has been transferred to the Collector, and the sale has been conducted by the Collector or by any Officer subordinate to the Collector an application under Rules 89, 90 or 91 and in the case of an application under Rule 89, the deposit required by that rule, if made to the Collector or the officer to whom 'the decree is referred for execution in accordance with any rule framed by the local Government under Section 70 of the Code, shall be deemed to have been made to, or in the Court, within the meaning of Rules 80, 90 and 91.'

The object of this rule is to create, both for the purpose of the Code of Civil Procedure as also for the purpose of the Indian Limitation Act, a fiction that an application under Rule 89, 90 or 91 and a deposit under Rule 89 made along with an application in that behalf shall be deemed to have been validly made to the executing Court, so as to enable the Court to enquire into that application and decide whether the application should be dismissed or the sale should be set aside.

These are all the provisions that deal with the powers of the Collector in relation to the execution of decrees transferred to him by the Civil Court for sale of immovable property. There is nothing in any of these provisions which empowers him to enquire into an application made for setting aside the sale. The jurisdiction to enquire into such an application, made under Rule 89, 90 or 91, is exclusively vested in the Civil Court and even when an application is made to the Collector, his duty is merely to transfer that application and the deposit, if any, to the Court which transferred the execution proceedings to him.

6. The exclusive jurisdiction of the Civil Court to set aside an auction sale held by the Collector unequivocally recognised by the provisions referred to above, has been consistently upheld by a series of decisions of the Bombay High Court which, if referred to in the chronological order, indicate the promulgation of suitable provisions from time to time, in order to save from hardship the judgment-debtors who, through misconception of the powers of the Collector in relation to auction sales, made applications to him for setting aside sales on the grounds mentioned in any of the three rules referred to above.

In Lallu Trikam v. Bhavla Mithia, ILR II Bom 478, the Mamlatdar had held an auction sale under the orders of the Collector in execution of a decree for sale of certain immovable property belonging to the judgment-debtors transferred by the Civil Court. The sale was confirmed with the sanction of the Collector. The auction-purchaser applied to the Collector for a certificate of sale. But the latter, besides refusing the certificate, set aside the sale on the ground that the purchaser was a relative of the decree-holder. The purchaser made an application to the Subordinate Judge who had transferred the decree to the Collector, questioning the order of the Collector. But the Subordinate Judge as also the District Judge declined to give him relief for want of jurisdiction. In the appeal, the High Court held that an application for setting aside the sale must be made to the Civil Court under Section 311 (corresponding to Order XXI Rule 90) and should be dealt with by it under Section 312 (corresponding to Order XXI Rule 92) and that the Courts below were wrong in rejecting the application made to them on the ground that they had no jurisdiction.

Birdwood J. observed that

'...... in conducting a sale under rules prescribed by Government under Section 320 (corresponding to Sections 68 and 70) of the Code of Civil Procedure, a Collector acted magisterially as an officer of the Court.' and

'......we had no doubt on the question of theCivil Court's jurisdiction to deal with an application properly made, in such a case, under Section 311.'

In their Lordships' opinion

'As soon as the Collector has exercised or performed the powers or duties conferred, or imposed upon him by Sections 321 to 325 of the Code (corresponding to the provisions in the Third Schedule), he is Functus Officio.' and

'Any application for setting it aside must be made to the Civil Court under Section 311 x x x'.

In Ganpatram Motiram v. Issac Adamji, ILK 15 Bom 322 their Lordships had to consider the powers of the Collector under the rules framed by the local Government in exercise of the powers conferred by Section 320 of the Code of Civil Procedure 1882, and concluded that the rules did not empower the Collector to set aside the sale or extend the time given by the decree to the judgment-debtor to redeem the property.

The question as to whether the Collector had power to set aside a sale came up for consideration, again, in Baiamthi v. Madhav Manor, ILR 15 Bom 694. There, the decree-holder purchased the property in the auction sale held by the Collector for Rs. 650/- and deposited the purchase money into the Civil Court. Subsequently, a third party applied to the Collector for setting aside the sale, offering to purchase the property for Rs. 800/-. The Collector set aside the sale and held a re-sale. The decree-holder applied to the Subordinate Judge to set aside the re-sale and confirm the previous sale. The High Court came to the conclusion that the re-sale by the Collector was a nullity as he had no authority to cancel the earlier sale and that the question of confirmation of the previous sale should be dealt with by the Subordinate Judge as if the Collector had issued no orders on the subject.

The scope of the Collector's jurisdiction to entertain an application for setting aside a sale held by him, came to be considered in Narayan v. Rasulkhan, ILR 23 Bom 531, where the judgment-debtor made an application to the Collector for setting aside the sale on the ground of alleged irregularities within 30 days from the date of sale which had been held on 8th May, 1897. On 6th August 1897, he made another application to the executing Court to set aside the sale apprehending that he had not applied first to the proper authority and stating that his application had not been barred in view of Section 14 of the Indian Limitation Act. Rejecting the application, their Lordships concluded that the Collector had no jurisdiction and that there was, therefore, no bona fide mistake of jurisdiction such as would justify the Court in excluding the time occupied in applying to the Collector from the prescribed period of limitation. Their Lordships affirmed that under the rules framed by the local Government of Bombay, a Collector had not the power of the Civil Court to set aside a sale under Section 311 of the Code of 1882.

This, position was affirmed in Pita Moti v. Chunilal, ILR 31 Bom 207, where the application was one made under Section 310-A of the Code of 1882 (corresponding to Order XXI Rule 89). In that case the Civil Court refused to set aside the sale on an application made by the judgment-debtor under Section 310-A on the ground that there was another decree-holder who had taken action under Section 295 (corresponding to Section 73 of the Code of 1908). In appeal, their Lordships set aside the order of the lower Court, holding that when an application is made under Section 210-A complying with all the provisions contained therein and on proof of the required grounds, the Civil Court was bound to set aside the sale even if the execution proceedings had been referred to the Collector, because, the Collector had no power to set aside the sale under the Code. In that case, it was argued on the basis of Rule 17 framed by the Local Government ... 'that the Collector had the implied power to set aside the sale;' That rule provided that 'if any application to set aside a sale he made within the time limited by law to the Collector or other officer abovesaid, he shall refer the application to the Civil Court;' it corresponded with Rule 16 quoted above in paragraph 4. Their Lordships rejected this contention holding that the very terms of the rule precluded that contention and that it could not be said that it implied that the Collector had the power to set aside a sale.

In Shantmurti Devappa v. Narayan Ramchandra, 23 Bom LR 476 : (AIR 1921 Bom 209 (i) ), the Collector had held an enquiry into the application made to him for setting aside the sale, instead of forwarding the same to the Civil Court as required by Rule 17 then in force and referred to in Pita's case ILR 31 Bom 207. Their Lordships held that it was the duty of the Collector to have returned the application to the applicant and told him immediately that the application should be made to the Court. They took into consideration that the application had no substance on merits and therefore contended themselves by drawing the attention of the District Officers to the rule which, if not observed, would debar an applicant from having his application dealt with by the Civil Court.

It appears from the decision in Mahadu Tukaram v. Patlu Sadu, 31 Bom LR 221 : (AIR 1929 Bom 189) that the High Court of Bombay had framed Rule 91-A under Order XXI in exercise of the rule making power, providing that where the execution of a decree has been transferred to the Collector and the sale has been held by him or by his subordinates, an application made to him under Rules 89, 90 or 91 along with the deposit when necessary 'shall be deemed to have been made to or in the Court within the meaning of Rules 89, 90 and 91'.

In that case, the auction sale had been held by the Mamlatdar on January 16, 1926 in execution of a decree transferred by the Civil Court to the Collector. The judgment-debtors deposited the decretal amount and 5% of the purchase money in (She Mamlatdar's office and applied to him on January 25, 1926, to have the sale set aside. The application remained on the files of the Mamlatdar. The judgment-debtors applied to the Civil Court on March 22, 1926, for setting aside the sale. It was contended on behalf of the auction-purchaser that the Civil Court ought to have confirmed the sale and rejected the application as it had not been made to it in time. Their Lordships held that in view of the provisions contained in Rule 91-A of Order XXI, the application and the deposit made to the Collector were rightly deemed to have been made to the Civil Court within the meaning of Rule 89 of Order XXI and that the lower Courts were right in setting aside the sale.

The scope of Rule 91-A of Order XXI of the Code came up to be considered in Veerappa Channappa v. Iratappa Malagi, AIR 1938 Bom 209 where the judgment-debtor's property had been sold by the Collector in execution proceedings transferred to him on nth March 1936 and an application was made to the Civil Court under Order XXI Rule 89 on 15th April after the expiration of 30 days. The applicant pleaded that the Civil Court had been closed from 9th April to 14th April (inclusive) and that his application was therefore in time. In that case it was contended on behalf of the decree-holder that the petition was out of time as it was open to the judgment-debtor to make an application to the Collector within 30 days as the execution of the decree had been transferred to him.

In the Revision petition the learned Chief Justice held that the provisions of Rule 91-A were merely conditional and that if no application were made to the Collector, that rule would never come into operation and that there was nothing, whatsoever, to compel the applicant to make his application to the Collector rather than to the Civil Court. This long line of decisions of the Bombay High Court would indicate that the Civil Court alone is competent to set aside an auction sale held by a Collector in an execution proceeding transferred to him, whenever an application is made for setting aside a sale under Order XXI Rule 89, 90 or 91.

The decisions and the rules further establish that if an application under any of the rules is made to the Collector, he has to transfer the same to the Civil Court and the Civil Court has to treat such application, as if such application were initially made to the Civil Court itself. In the present case, both the applications have been made to the Civil Court itself. There is nothing either in the provisions of the Code of Civil Procedure or of the rules made by the former Government of the Bombay State under Section 70 of the Code or by the High Court of Bombay under Section 122 of the Code, which takes away the power of the executing Court or affects its jurisdiction to entertain, deal with and dispose of the applications according to law.

7. The order of the learned Civil Judge dismissing the applications does not refer either to the provisions of law or to any of the authorities discussed above. He has rested his conclusion solely on the observations of this High Court in (1959) 37 Mys L.J. 129. In that case, the plaintiff who was the appellant before the High Court had instituted a suit for a declaration that the sale held by the Collector in Darkhast No. 1133 of 1939 was void and for an injunction restraining the decree-holder-purchaser from taking possession of the lands sold at the auction held in the execution proceedings.

The main ground on which the suit had been based was that the attachment by the Civil Court and the consequent order for sale were without jurisdiction as the concerned lands had already been attached in Darkhast No. 302 of 1938 and that Dharkhast (execution proceedings) for sale of the said lands was pending before the Collector. According to the plaintiff, the process issued by the Civil Court directing the Collector to sell the property was in contravention of paragraph II of Schedule III of the Code of Civil Procedure. In the reported decision, the facts are not fully stated. We therefore called for the original records of the Civil suit and of the appeal thereon, for ascertaining the facts fully.

It appears that prior to the attachment of the said lands in the Darkhast of 1939, those very lands had been attached in Darkhast No. 302 of 1938 and the proceedings were pending before the Collector for sale. After the sale was held in the Darkhast of 1939, the plaintiff filed an application under Order XXI Rule 90 for setting aside the sale. That application was dismissed on merits. He preferred an appeal to the District Judge and urged, for the first time, in appeal that the auction sale was a nullity as it contravened paragraph 11 of Schedule III of the Code. The plaintiff was not permitted to raise the new point and his appeal was dismissed by the District Court. It was thereafter that he filed the suit for a declaration that the sale was a nullity and without jurisdiction on the sole ground that it was in contravention of paragraph II of Schedule III of the Code. The trial Judge and the District Judge upheld the contention on merits, but dismissed the suit and the appeal respectively on the ground that the suit was barred by Section 47 of the Code of Civil Procedure.

In the appeal before their Lordships, the appellant contended that that case did not fall within the purview of Section 47 of the Code of Civil Procedure and was not barred by the provisions of the said Section. Their Lordships upheld this contention and allowed the appeal. It would thus be seen that the questions that actually arose for decision before their Lordships were: whether the auction sale was in contravention of the provisions of paragraph II of the IIIrd Schedule of the Code of Civil Procedure and whether the suit was barred by Section 47 of the Code of Civil Procedure. In discussing the bar of Section 47 to that suit their Lordships have no doubt made the following observations on which the learned Civil Judge has placed reliance :

'...... The executing Court by virtue of the provisions of Section 68 of the Code of Civil Procedure had transferred the proceedings to the Collector and the sale was held by the Collector. The question which is raised in this suit relates to the validity of the said sale. In other words, the plaintiff wants a declaration that the sale held by the Collector is void and is a nullity. Can an executing Court give such a declaration? It should be remembered that the sale was not effected by the executing Court itself but was done by the Collector. In my opinion, the executing Court cannot determine the question as to the validity or otherwise of such sale, for the obvious reason that the sale itself was not effected by the executing Court but was effected by the Collector.'

'...... Both on the authorities and on principleI hold that the executing court has no jurisdiction to determine the validity or otherwise of a sale held by the Collector pursuant to Section 68 of the Code of Civil Procedure.

No application also lies to the Collector for determination of the question as to whether or not the sale held by him is void.'

It is obvious from the facts and the discussion that what the Court had to decide in that case was whether the auction sale in the execution proceedings held by the Collector was a nullity being in contravention of paragraph II of Schedule III of the Code of Civil Procedure and if so, whether a suit for a declaration that such a sale was a nullity and without jurisdiction was barred by Section 47 of the Code of Civil Procedure. The present question of tenability of an application under Order XXI Rule 90 for setting aside a sale on the ground of material irregularity was, therefore, not directly in issue in that appeal. We have pointed out, above that according to the rules framed by the former Government of Bombay and the Bombay High Court, it was the executing Court alone which had jurisdiction to deal with and decide an application made under Order XXI Rule 90 and that even if an application were made to the Collector, his duty was merely to transfer it to the Civil Court for decision.

8. In making the said observations, their Lordships in Veerabhadrappa's case, (1959) 37 Mys LJ 129 relied upon the decisions in Bhagwan Das v. Suraj Prasad : AIR1925All146 , Harindra Nath v. Bhola Nath : AIR1937All407 and Bal-krishandas v. Malakajappa, AIR 1933 Bom 369. In both the cases of the Allahabad High Court, it was held that the Civil Court had no jurisdiction to interfere with a sale held by the Collector where the execution of a decree had been transferred to him under Section 68 of the Code of Civil Procedure. It appears that the attention of their Lordships of this High Court was not drawn to Rules 996, 997 and 998 of the Manual of orders in the Revenue Department of the U. P. Government, which empowered the Collector to set aside a sale on grounds similar to those provided for by Order XXI Rules 89, 90 and 92, or to confirm it. In this connection, reference may be made to the decision in Aijaz Ahmad v. Nazirul Hasan, AIR 1935 All 868 where there is a reference to discussion of these rules in deciding the jurisdiction of the Collector to set aside a safe of immovable property held in execution of a decree transferred to him by the Civil Court under Section 68 --

'... .. The local Government has in exercise of the powers vested in it by Section 70 (i), Civil P. C.. made rules conferring upon the Collector the power to set aside a sale on grounds similar to those provided for by Order 21 Rules 89 and 90, Civil P. C., (vide Rules 996 and 997 of Manual of Orders of the Government of the United Provinces in the Revenue Department, Vol. I). Similarly Rule 998 framed by the local Government confers on the Collector the power to confirm or to pass an order setting aside the sale on grounds similar to those provided for by Order 21, Rule 92, Civil Procedure Code. The orders passed by the Collector or his gazetted subordinates are further made appealable by the rules to higher revenue authorities. It. cannot therefore be disputed that the Collector has powers similar to the powers conferred on the Civil Courts by the Civil Procedure Code to confirm or to set aside a sale. The order of the Collector confirming or setting aside a sale therefore stands on an identical footing with similar orders passed by the Civil Courts in execution proceedings x x x'.

It was on the strength of the rules framed by the local Government that the Allahabad High Court came to the conclusion that the Collector had jurisdiction to set aside the sale and that the propriety of his order could not be called into question in the Civil Court.

Neither the rules framed by the Bombay Government nor the rules framed by the High Court of Bombay confer any such power of setting aside a sale on the Collector. That power vests exclusively in the executing Court and therefore the decisions of the Allahabad High Court would not be an authority on the question of jurisdiction of the executing Court to set aside a sale on an application under Order XXI Rule 90 of the Code,

The decision of the Bombay High Court in AIR 1933 Bom 369 also relied upon by their Lordships in support of the proposition that the Civil Court could not set aside the sale held by the Collector has no bearing on that point. A reference to the facts of that case will indicate that the point for decision before the Bombay High Court was different. In that case, a decree for Rs. II, 626-7-7 payable in instalments of Rs. 800/-each, was put into execution, for recovery of the 7th and 8th instalments amounting to Rs. 1,600/-as principal and Rs. 173/- as interest. The Subordinate Judge transferred the execution proceedings to the Collector. The Collector ordered the land to be leased to one Melappa Andaneppa for 12 years on a yearly rent of Rs. 500/-. An application was made to the executing Court to set aside the lease and the learned Subordinate Judge held that the action of the Collector was intra vires. It was contended before their Lordships for the appellant that the Collector, by fixing the amount of rent of Rs. 500/- and ordering the rent to be paid to the decree-holder had varied the original decree which had made the amount payable by instalments of Rs. 800/-. It was contended for the respondents that the Civil Court had no jurisdiction to set aside the order passed by the Collector in execution of the decree under Schedule III.

Their Lordships upheld the contentions advanced for the respondents on the ground that the Civil Court had no jurisdiction to interfere with the order passed by the Collector, in exercise of the power vested in him under paragraph 7 of Schedule III of the Code of Civil Procedure. It would thus be obvious that this decision did not deal with the power of the Executing Court to set aside the auction sale held by the Collector. Had the rules framed by the Local Government of Bombay under Section 70 (1) (b) of the Code of Civil Procedure conferred powers of the Civil Court with regard to the setting aside of an auction sale held in execution of a Civil Court decree on an application under Order XXI Rule 90, on the Collector (as was the position under the rules made by the U. P. Government), then the observations in Veerabhadrappa's case, (1959) 37 Mys LJ 129 above referred to would have been applicable to the facts of the present case. In the absence of such rules, it has to be held that the Collector has got no power to set aside a sale in execution proceedings transferred to him and that it is the executing Court alone, on an application made to it, that is competent to set aside the same.

Mr. Datar for the appellant has drawn our attention to an unreported decision (dated I4th June 1962) of his Lordship Mr. Justice A.R. Somnath Iyer in Govind v. Krishna Madhav, Civil Revn. Petn. No. 836 of 1960 : (AIR 1963 Mys 175), in which his Lordship had to deal with an application made by the Judgment-debtor for setting aside a sale under Order XXI Rule 89 of the Code of Civil Procedure. The decision in (1959) 37 Mys LJ 129 to which his Lordship was a party, was cited for the respondent in support of the proposition that the application under Rule 89 could not have been made to the Civil Court but should have been made only to the Collector. Dealing with the objection raised for the respondent, his Lordship observed --

'...... can it be said that those applications (applications under Order XXI Rules 2 and 89) should be made to the Collector in all cases in which the decree has been transferred to him for execution, and can it be said that if it is not made to the Collector but to the executing Court and the deposit is also made in the Court and not with the Collector, the judgment-debtor is not entitled to have the cancellation of the sale? There have been cases in which the question which really engaged the attention of the Court was not whether an application made to the executing Court and a deposit made in it was a valid application or a valid deposit but whether an application made to the Collector accompanied by a deposit with him was a valid application and deposit entitling the judgment-debtor to a cancellation of the sale. No one has questioned until now so far as I have been able to see the validity of an application made to the Court although the sale was held by a Collector, and, it. seems to me that it would have been impossible for anyone to suggest that notwithstanding the requirements or Rule 89 of Order XXI of the Code of Civil Procedure, a judgment-debtor cannot make an application to the Court executing the decree although it has entrusted the Collector with the execution proceedings, but is under a duty to make his application to the Collector and deposit the amount with him. I can understand a difficulty arising in the case of an application presented to the Collector but I can never understand what difficulty car? be presented by an application presented to the Court even in cases in which the Collector is entrusted with the execution of the decree.'

His Lordship further referred to Rule 91-A of Order XXI made by the High Court of Bombay and observed that the rule made it clear that the requirement of the law was that the application should be made to a Court. His Lordship accordingly was of the opinion that the application presented by the judgment-debtor in that case to the executing Court was a good application and could not have been dismissed by the Courts below.

It would be apparent from this decision that his Lordship, while not expressly distinguishing the facts in that case from the facts in Veerabhadrappa's case, has not followed the general observations therein that the executing Court cannot entertain an application to set aside an auction sale held by the Collector in an execution proceeding transferred to him under Section 68 of the Code of Civil Procedure.

The question actually decided in Veerabhadrappa's case (1959) 37 Mys LJ 129 viz., that the auction sale was void on the ground that it was in contravention of the provisions of Schedule III of the Code and that the suit was not barred by* Section 47 of the Code of Civil Procedure, can have no bearing on the points at issue in this case.

9. Mr. Savanur, the learned Advocate for the respondent, submitted that if Rule 15 (b) at page 104 of the Civil Manual were read with Rule 92 of Order XXI, it would follow that in cases where the sale is held by the Collector the application for setting aside the sale should be made to him alone and if not made to him, he was bound to confirm the sale. Rule 15 (b) of the Civil Manual confers on the Collector and on the gazetted Officer subordinate to the Collector to whom a decree has been transferred for execution, the power specified in Sub-rule (1) of Rule 92 of Order XXI of the I Schedule of the Code of Civil Procedure. Rule 92 (1) of Order XXI reads thus --

'Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.'

'Mr. Savanur's contention that if no application were made to the Collector under any of the rules mentioned in Clause (1) of Rule 92 the Collector was bound to confirm the sale cannot be upheld.

We have discussed above the relevant provisions of the rules framed by the local Government and also the High Court of Bombay and have indicated that primarily an application under rule 89, 90 or 91 must be made to the Civil Court and that by virtue of Rule 91-A framed by the High Court of Bombay, if an application with or without deposit, as the case may be, is made to the Collector, the latter shall transfer it to the executing Court which transferred the decree to him for execution, implying thereby that the Collector cannot confirm the sale until the application made to him or the Civil Court has been disposed of by the letter according to law. The mere fact that the Collector is conferred with the power of confirming lithe sale does not imply that he can ignore the provisions contained in Clause (1) of Rule 92 which provide for confirmation of sale only after an application made under any of the rules has been disallowed. The effect of these provisions would be that even if the Collector confirms a sale in ignorance of the pendency of an application before the Court made under Rule 89, 90 or 91, such a confirmation would not be valid in law, as his jurisdiction to confirm the sale arises only after such application has been disposed of by the executing Court.

10. In our opinion, the learned Civil Judge was in error in dismissing these applications as untenable. We accordingly allow the appeals and set aside the orders of dismissal passed by the Civil Judge. We direct that the records of the proceedings of the petitions shall be remitted back to him, for disposal according to law. The parties shall bear their own costs in this Court.


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