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Chhakauri Khan Vs. Pir Bakhsh Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All279
AppellantChhakauri Khan
RespondentPir Bakhsh Khan and anr.
Excerpt:
.....cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - iii of 1901), and the orders parsed by the collector and the board of revenue would be clearly within their jurisdiction......passed under act ii of 1901, section 159. apparently the two decrees were consolidated and one sale held on account of both decrees so consolidated.2. the judgment-debtor applied to the assistant collector offering to pay in the sum decreed in accordance with the provisions of section 310a of the code of civil procedure as made applicable to rent courts. the assistant collector of the second class rejected his application and there is no doubt that he did so wrongly. chhakauri khan then got a sale certificate in his favour and obtained formal possession over the house on the 5th november 1905.3. the judgment-debtor appealed to the collector who set aside the order of the court below and granted the judgment-debtor ten days further within which to pay the decree money together with.....
Judgment:

George Knox and Griffin, JJ.

1. This appeal has been brought by Chhakauri Khan who purchased at a sale in execution of two Revenue Court decrees the house of the judgment-debtor defendant. One decree was for costs resulting in proceedings under Section 39 of Act No. III of 1901. The other was a decree passed under Act II of 1901, Section 159. Apparently the two decrees were consolidated and one sale held on account of both decrees so consolidated.

2. The judgment-debtor applied to the Assistant Collector offering to pay in the sum decreed in accordance with the provisions of Section 310A of the Code of Civil Procedure as made applicable to Rent Courts. The Assistant Collector of the second class rejected his application and there is no doubt that he did so wrongly. Chhakauri Khan then got a sale certificate in his favour and obtained formal possession over the house on the 5th November 1905.

3. The judgment-debtor appealed to the Collector who set aside the order of the Court below and granted the judgment-debtor ten days further within which to pay the decree money together with the penalty. The money was paid in within ten days, and the sale set aside. The present appellant then applied to the Board of Revenue for revision of the Collector's order and his application was dismissed. He then instituted the suit out of which this appeal has arisen. In it he asks that the decision of the Collector and that of the Board of Revenue above mentioned be set aside as being ultra vivos and contrary to law and that a declaration may be given in his favour for maintenance of possession over the house purchased. The Court of first instance held that Section 310A applied to the case, that the Assistant Collector had jurisdiction to entertain the application and although he decided it wrongly and in such a way as to result in a substantial injustice to the judgment-debtor no appeal lay from that order. He took the view that the orders of the Collector and the Board of Revenue were ultra vires, that the sale having been confirmed by the Assistant Collector, and his order being final, Chhakauri Khan was entitled to possession. The lower appellate Court took the view that the order of the Assistant Collector under Section 310A was appealable and setting aside the decree of the Munsif remanded the case under Section 502 for trial on the merits.

4. In appeal before us it is contended that Section 310A of the Code of Civil Procedure does not apply to the sale inasmuch as ft was held in joint execution of two decrees, one passed under Act No. II of 1901 and the other under Act No. III of 1901.

5. The learned vakil for the appellant allowed that the section might apply in execution of a decree passed under Act No. II of 1901, but this being a sale 'in joint execution of two decrees,' one under Act No. II of 1901 and the other under Act No. III of 1901 it could not be said under which of the two Acts the sale was held.

6. We do not think we need enter into the question under which of the two Acts the sale was held. If it were held under Act No. III of 1901 the appeals from orders passed in execution would lie to the Collector, Commissioner and the Board of Revenue (vide Sections 210, 211 of Act No. III of 1901), and the orders parsed by the Collector and the Board of Revenue would be clearly within their jurisdiction. If, on the other hand, the order parsed on tie application under Section 310A was an order passed under Act No. II of 1901 it appears to us that the Civil Court would have no jurisdiction to entertain any question relating to it. Whether or not an appeal lay to the Collector from the order passed by the Assistant Collector, the Board undoubtedly had the power of revision. The appellant did apply to the Board and got from the Board of Revenue the order of which he complains. With that order the Civil Court is forbidden to interfere under Section 167 of Act No. II of 1901.

7. This is certainly a matter in which the Board of Revenue could take cognizance of the disputes between the parties and no Court other than the Court of Revenue could take cognizance. The appeal fails and is dismissed with costs.


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