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Nathu Mal Vs. Lachmi Narain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All43
AppellantNathu Mal
RespondentLachmi Narain
Excerpt:
.....procedure code, sections 313, 320 - transfer of execution of decree to collector--jurisdiction of civil courts to entertain application under section 313-- rules prescribed by local government under section 320--notification no. 671 of 1880, dated the 30th august. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal..........pandit sundar lal that when once execution of a decree has been transferred to the collector, the civil courts thenceforth become divested of all jurisdiction, and the only thing they can do is to see to the application of the money, the proceeds of such sale, on its being handed over by the collector, and has relied on madho prasad v. hansa kuar i. l. r., 5 all., 314, as an authority for that proposition. now, assuming that the xecution of the decree had never been transferred to the collector, let us for a moment consider what is the reason for the introduction of section 313 into the code of civil procedure.3. it was introduced in order that a speedy, quick, and inexpensive remedy might be provider) by which a purchaser could get out of his difficulty in cases in which he, busing.....
Judgment:

John Edge, Kt., C.J.

1. In this case a decree, ordering the sale of certain immoveable property, had been transferred to the Collector, who, in accordance with the direction, sold. The purchaser alleges that it was after such sale he discovered that the judgment-debtor had no saleable interest in the property sold by the Collector. Thereupon he applied to the Judge to set aside the sale under, I presume, Section 313, Civil Procedure Code.

2. The learned Judge was of opinion that, inasmuch as the sale had been transferred to the Collector, he had no jurisdiction in the matter, and declined to entertain the application, from which order an appeal has been preferred before us. The only question before us is, had the Judge jurisdiction to entertain the application made to him? It is contended by Pandit Sundar Lal that when once execution of a decree has been transferred to the Collector, the Civil Courts thenceforth become divested of all jurisdiction, and the only thing they can do is to see to the application of the money, the proceeds of such sale, on its being handed over by the Collector, and has relied on Madho Prasad v. Hansa Kuar I. L. R., 5 All., 314, as an authority for that proposition. Now, assuming that the xecution of the decree had never been transferred to the Collector, let us for a moment consider what is the reason for the introduction of Section 313 into the Code of Civil Procedure.

3. It was introduced in order that a speedy, quick, and inexpensive remedy might be provider) by which a purchaser could get out of his difficulty in cases in which he, busing property at a sale under a decree, found that the judgment-debtor had no saleable interest in the property. For certain reasons it was decided that certain of these sales should be transferred to the management of Collectors; and accordingly Section 320 was introduced into the Code, and the Local Government had thereunder power to declare by notification that the execution of certain kinds of decrees should be transferred to the Collector. But there is nothing to show that the Local Government had power to make any rule enabling the Collector to deal with questions of title. I can well understand why such a power should not have been delegated to the Collector. Questions of title are sometimes the most difficult ones to deal with, and they should be left in the hands of the constituted Courts of this country. Further, the Notification by the Local Government, No. 671, dated the 30th August, 1880, specially provides that the Collector shall not before sale exercise any jurisdiction whatever on an objection raised to the sale. If any question of sale arises, it may be brought before the Court which made the decree, and that Court may deal with it. It can also be brought before the Collector, but with the only result that he must send it on for disposal to the Civil Courts. it is obvious that it was never intended by the framers of the Notification of 1880, or of the Civil Procedure Code, that the Collector should have jurisdiction to deal with matters relating to title. Let us consider whether, according to the wording of these sections of the Code, the Civil Courts have not power to entertain applications such as this one in the present case. In Section 313, Civil Procedure Code, it is provided that the purchaser at 'any such sale' may apply to the Court. 'Any such sale' must refer to a sale Chapter XIX Section 311 Consequently, if this is a sale under Chapter XIX, and there is no exposes provision taking away the power of the Civil Courts to deal with it, it follows that jurisdiction still remains with us. That it is a sale under chapter XIX is admitted by Pandit Sundar Lal. It is a sale in pursuance of a decree. It is a sale which has its very existence by reason of the provisions of Chapter XIX of the Civil Procedure Code. I have therefore no hesitation in saying that this case comes within Section 313, and that the Civil Courts had jurisdiction to entertain the application.

4. The appeal will therefore be allowed with costs, and the Judge below is directed to hear the application on its merits.

Oldfield, J.

5. I concur.


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