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Shiam Behari Lal and anr. Vs. Rup Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All379
AppellantShiam Behari Lal and anr.
RespondentRup Kishore and ors.
Excerpt:
civil procedure code, sections 312 and 320 - act no. vii of 2668, sections 30 and 65--execution of decree--decree transferred to collector for execution--suit by auction purchaser to confirm a sale which had been set aside by the collector. - - the words 'the court' clearly refer to the court alluded to in the previous portion of the section, namely, the court to which application was made for the execution of the decree and which as such court transmitted the decree to the collector for execution......then applied to have the sale set aside on the ground of irregularity in the publication of the sale. the collector, by his order of the 16th of november 1893, set the sale aside. thereupon the present suit was brought by the plaintiffs for a declaration that the auction sale was a valid one and that the order of the collector setting it aside was ineffectual. the court of first instance decreed the claim, and the court of first appeal affirmed the decree of the first court. the defendants prefer this appeal and the learned counsel who appears for them obtained the leave of the divisional court which referred the case to this bench to argue the question whether the suit was maintainable. in support of the contention raised on behalf of the appellants is the ruling of this court in.....
Judgment:

Banerji, J.

1. The simple question referred to this Bench is whether the present suit is maintainable. The facts out of which the suit arose were these. The plaintiffs obtained a decree against the present defendants, and in execution thereof they obtained an order for the sale of the ancestral property of the defendants. In accordance with the rules prescribed by Government in respect of the sale of ancestral property, the execution of the decree was transferred to the Collector under Section 320 of the Code of Civil Procedure. The property of the defendants was put up for sale on the 20th of September 1893, and was purchased by the plaintiffs with the leave of the Court. The defendants then applied to have the sale set aside on the ground of irregularity in the publication of the sale. The Collector, by his order of the 16th of November 1893, set the sale aside. Thereupon the present suit was brought by the plaintiffs for a declaration that the auction sale was a valid one and that the order of the Collector setting it aside was ineffectual. The Court of First Instance decreed the claim, and the Court of first appeal affirmed the decree of the first Court. The defendants prefer this appeal and the learned Counsel who appears for them obtained the leave of the divisional Court which referred the case to this Bench to argue the question whether the suit was maintainable. In support of the contention raised on behalf of the appellants is the ruling of this Court in Shib Singh v. Mukat Singh I.L.R. 18 All. 437. On the other hand, the contrary opinion is supported by the ruling in Ugar Nath Tiwari v. Bhonath Tiwari Weekly Notes 1891 p. 41. In consequence of these conflicting rulings the question whether a suit of this kind can be maintained has been referred to this Bench. The decision in the case last mentioned followed the decision of the majority of the Full Bench in the case of Diwan Singh v. Bharat Singh I.L.R. 3 All. 206. That case was decided with reference to the provisions of Section 312 of Act No. X of 1877. Act No. XIV of 1882 has made no alteration in the wording of Section 312. There can be no doubt that the last paragraph of that section is not happily worded. An order under that section must be either an order confirming the sale or an order setting aside the sale. An order of the latter description cannot be sought to be set aside on the ground of irregularity, that is, of the existence of irregularity in publishing or conducting the sale. The suit which is forbidden by the last paragraph of the section cannot therefore be a suit to set aside any order passed under the section, but must be a suit to set aside an order passed under the first paragraph of the section only. Consequently, as held by the majority of the Full Bench in the case referred to, there is no prohibition against the institution of a suit to set aside an order refusing to confirm a sale unless by subsequent legislation an alteration has been made in the law in respect of the maintenance of such a suit. We must assume that when the Legislature re-enacted in Act No. XIV of 1882 the provisions of Section 312 of Act No. X of 1877 it did not intend to make any alteration in the law as it was interpreted by the majority of the Full Bench in the case referred to. The learned Judges who decided the case of Shib Singh v. Mukat Singh I.L.R. 18 All. 437, were of the opinion that Act No. VII of 1888, by which Section 320 of Act No. XIV of 1882 was amended, took away from the Civil Courts the right to entertain a suit for the confirmation of a sale which had been set aside by the Collector in the exercise of the powers given to him under the rules framed by the Government in pursuance of the provisions of Section 320 as amended by Act No. VII of 1388. With this opinion we are unable to agree. By Section 30 of Act No. VII of 1888 the third, fourth and fifth paragraphs of Section 320 as they now exist were added. The third paragraph empowers the Government to frame rules conferring upon the Collector or any gazetted subordinate of the Collector the powers which the Court which transferred the decree to the Collector might exercise in execution of the decree, if the execution thereof had not been transferred to the Collector. Such rules have been framed by the Government. The penultimate paragraph of that section provides that the powers conferred on the Collector, or any gazetted subordinate of the Collector, or upon any appellate or revisional authority, by the rules so framed, cannot be exercised by the Court or by any Court exercising appellate or revisional authority in respect to the decrees or orders of that Court. The words 'the Court' clearly refer to the Court alluded to in the previous portion of the section, namely, the Court to which application was made for the execution of the decree and which as such Court transmitted the decree to the Collector for execution. So that the penultimate paragraph of Section 320 as amended by Act No. VII of 1888 does not take away the jurisdiction of any Court other than the Court referred to in it. If the execution of the decree had taken place in the Civil Court which transmitted it to the Collector, a suit of the nature of the present suit would, under the Full Bench ruling in Diwan Singh v. Bharat Singh I.L.R. 3 All. 206, have been maintainable. The fact that the Collector exercises the powers which the Civil Court could have exercised but for the provisions of Section 320 and the rules framed under it cannot deprive the ordinary Civil Courts of the jurisdiction to entertain such a suit. For the above reasons our answer to the reference is that the suit is maintainable.

2. Both the parties consent that this appeal be decided by this Bench. As the only point which really arises in this appeal was the plea which has been disposed of by the above decision and the other pleas in the memorandum of appeal have been abandoned, the result is that this appeal fails and is dismissed with costs.


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