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Gulzari Lal Vs. Manager, Court of Wards of B. Parshottam Narain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1946All415
AppellantGulzari Lal
RespondentManager, Court of Wards of B. Parshottam Narain
Excerpt:
- - 3. for these reasons we think that the special judge was perfectly right in holding that as the property claimed by the appellant had been transferred to a third person under the provisions of section 24, encumbered estates act, the applicant's claim was barred by the provisions of section 11 of that act, this section allowing a belated application to be admitted at the discretion of the special judge only where the property has not been transferred to any person under the provisions of section 24 and some other sections......property under the encumbered estates act the collector must observe the provisions of the civil procedure code in regard to sales by auction, and to support this view a board of revenue case, shanti prasad v. brij behari lal ('43) 1943 a.w.r. rev. 138 has been cited. this case undoubtedly supports the appellant. it was held therein that a collector or other officer proceeding under section 24 has no authority to sell by private negotiation and that the sale must be held in accordance with the procedure prescribed in order 21, civil p.c., that is, by means of an open auction after proclamation. with respect, we are unable to concur in this view. in the first place, it appears to us that the discretion of the collector in regard to the procedure which he should follow in selling.....
Judgment:

Bennett, J.

1. This is a first appeal under Section 45, Encumbered Estates Act. The sole question which it raises is whether the Collector is empowered under Section 2i of the Act to sell the property of the debtor by private negotiation. This question arises upon a claim made by the appellant, Gulzari Lal, under Section 11 of the Act. This claim was made on 10th September 1948, long after the proceedings had been completed in the Court of Special Judge and some time also after the property which Gulzari Lal claimed had been transferred by private sale to one Hazari Lal. The Special Judge disallowed the claim as it was very belated and as the property claimed had been transferred to a third person for the liquidation of the debts of the applicant under Section 4. Against this decision it has been contended by the learned Counsel for the appellant that there was no valid compliance with the provisions of Section 24, inasmuch as that section does not empower the Collector to sell the property by private negotiation, but on the contrary requires him to sell it by public auction.

2. For this proposition reliance has been placed in particular on the provisions of Sub-section (4) of Section 24 to the effect that for realising the value of the debtor's property the Collector may exercise all the powers of a civil Court for the execution of a decree. It is contended that this sub-section applies that in selling the debtor's property under the Encumbered Estates Act the Collector must observe the provisions of the Civil Procedure Code in regard to sales by auction, and to support this view a Board of Revenue case, Shanti Prasad v. Brij Behari Lal ('43) 1943 A.W.R. Rev. 138 has been cited. This case undoubtedly supports the appellant. It was held therein that a Collector or other officer proceeding under Section 24 has no authority to sell by private negotiation and that the sale must be held in accordance with the procedure prescribed in Order 21, Civil P.C., that is, by means of an open auction after proclamation. With respect, we are unable to concur in this view. In the first place, it appears to us that the discretion of the Collector in regard to the procedure which he should follow in selling the property is not fettered in any way by Section 24. Sub-section (4) of that section merely provides that he may exercise all the powers of a civil Court for the execution of a decree in realising the value of the debtor's property: it does not require him to do so. But even if it did, we should not be disposed to hold that the procedure adopted by the Collector in the present case was illegal because such procedure is not prohibited by the Civil Procedure Code in 0rder 21. On the contrary, Rule 83 of that Order shows that in certain circumstances the execution Court may at the instance of the judgment-debtor dispose of the property otherwise than by public auction. Private sale is expressly referred to in this rule as one of the methods for satisfying decree.

3. For these reasons we think that the Special Judge was perfectly right in holding that as the property claimed by the appellant had been transferred to a third person under the provisions of Section 24, Encumbered Estates Act, the applicant's claim was barred by the provisions of Section 11 of that Act, this section allowing a belated application to be admitted at the discretion of the Special Judge only where the property has not been transferred to any person under the provisions of Section 24 and some other sections. We accordingly dismiss the appeal with costs.


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