1. This is a judgment-debtor's appeal against the order passed by the Court below refusing to set aside a sale.
2. The decree-holder in execution of his decree against the judgment-debtor put to sale share in two villages and purchased them himself on 20th September 1932. The judgment-debtor filed objections challenging the sale on various grounds. They have all been rejected by the learned Subordinate Judge. The present appeal has been preferred against that dismissal.
3. We have mentioned above that the auction-sale took place on 20th September 1932. The application asking for setting aside the sale under the provisions of Rule 90, Order 21, Civil P.C., should have been made within a period of thirty days from the date of the sale. It appears however as found by the Court below, that by mistake the clerk of counsel for the judgment-debtor presented this application in a wrong Court. The execution case was pending in the Court of the learned Subordinate Judge under whose order the sale had taken place, and so the application for setting aside the sale should have been made to his Court; but by mistake the application was put before the Munsif; and when the mistake was discovered it was returned to the judgment-debtor when it was finally put in the Court of the learned Subordinate Judge. Thus there was a delay of one day. The Court below was asked to condone this one day's delay under the provisions of Section 5 read with Section 14, Limitation Act. The learned Subordinate Judge refused this prayer. It was argued that the learned Subordinate Judge was wrong in not condoning the delay under Section 5, Limitation Act. We are of opinion that on this point the decision of the learned Subordinate Judge cannot be disturbed. In our opinion, Section 5, Limitation Act, does not apply to an application made under Rule 90, Order 21, Civil P.C. An application under Rule 90, Order 21 is governed by Article 166, Limitation Act. This view has been taken in a large number of cases, and we are not prepared to dissent from it. These cases are all discussed in Mitra's Law of Limitation, Vol. 2, p. 1872 (6th Edition).
4. As regards the various grounds on which the judgment-debtor wished the sale to be set aside, all that is necessary for us to say is that they have been rightly rejected by the learned Subordinate Judge. There is no substance in them.
5. If the application made by the plaintiff be treated as one made under Rule 90, Order 21, Civil P.C., then it must be held that it was not made within limitation, and was rightly dismissed. But in this Court the learned Counsel appearing on behalf of the appellant has taken the plea of jurisdiction. He contended that the property sold was agricultural, and therefore the learned Subordinate Judge should have transferred the decree for execution to the Collector, and he himself had no jurisdiction to sell the same. In our opinion, this contention is well-founded and must therefore prevail. We have mentioned above that the Government, acting under the provisions of Section 68, Civil P.C., had issued a notification, which is No. 576/ 1-A-93, published in the second part of the United Provinces Gazette, of 26th March 1932, and runs as follows:
In supersession of notification No. 1887/1-238, dated 7th October 1911, and in exercise of the powers conferred by Section 68, Civil P.C., 1908, the Governor in Council is pleased to declare that, with effect from 1st April 1932, the execution of decrees in cases is which a Civil Court has ordered any agricultural land situated in the United Provinces of Agra and Oudh or any interest in such land to be sold shall be transferred to the Collector.
6. This notification includes fractional shares also. Therefore the learned Subordinate Judge was not competent to order a sale and the decree should have been transferred to the Collector. It has been hold in various cases that if it is declared by notification that a decree for Sale of a particular kind of property should be transferred to the Collector for execution, a sale of the property, if made I by a civil Court, is void; and that such a notification ousts the jurisdiction of the Court so far as regards the execution of the decree. See on this point Sukhdeo Rai v. Sheo Ghulam (1882) 4 All. 382. It is therefore clear that in the case before us the civil Court had no jurisdiction to sell the property. The sale made by it was therefore void. The question for consideration is whether an application for setting aside such a sale is one made under Rule 90, Order 21, Civil P.C., to which Article 166 is applicable; or is it an application in execution for which no period of limitation is provided, and is therefore governed by Article 181, Limitation Act. We are of opinion that it must be held that having regard to the plea of jurisdiction raised by the appellant, the application should be treated as one under Section 47, Civil P.C., for which no period of limitation is provided for, and is therefore governed by Article 181, Limitation Act. This question was considered by a full Bench of the Madras High Court in a case reported in Bajagopal Ayyar v. Ramunj Chariyar A.I.R. 1924 Mad. 431. It was decided by the Full Bench that where a sale in execution was a nullity, it had not got to be set aside; yet if a party filed an application to have it set aside either under Section 47, Civil P.C., or otherwise, it would be governed by Article 181, Limitation Act, and not by Article 166. A distinction is made between cases where a judgment-debtor asks for setting aside the sale on the grounds mentioned in Rule 90, Order 21 of the Civil Procedure Code and the case in which the prayer is for setting aside a sale which is already void. If a party wants a sale to be set aside for any of the reasons given in Rule 90, Order 21, then the application must be made within 30 days as enacted by Article 166, Limitation Act; but where a void sale is sought to be set aside, then the application would not be under Rule 90, Order 21, Civil P.C., but will be deemed to be an application made in execution governed by Section 47, Civil P.C., and to which Article 181, Limitation Act, would be applicable. In our opinion the Court below had no jurisdiction to sell the property, and it should have transferred the decree for execution to the Collector. The sale made by the learned Subordinate Judge was void and must therefore be set aside. For the reasons given above, we allow this appeal, set aside the sale made by the learned Subordinate Judge, and direct that the execution proceedings be transferred to the Court of the Collector for the sale of the judgment-debtor's property. As regards costs we are of opinion that both parties would bear their own costs, and we order accordingly.