Skip to content


Nand Kishore Vs. Badan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All575; 95Ind.Cas.578
AppellantNand Kishore
RespondentBadan Singh
Excerpt:
.....the sale, was without jurisdiction and that the sale of the 20th november 1916 gave a good title to the plaintiff. the auction-purchaser is entitled to say that the order setting aside the sale was passed after the collector had ceased to have any authority over the execution proceeding on the re-transmission of the decree to the civil court, and the title, which is vested in him under the certificate of sale after it was confirmed by the collector is a good and subsisting title capable of being enforced through a competent court. there can be no question that the collector's order, in setting aside the sale after he bad confirmed it, was ultra vires......and the decree re-transmitted to the civil court, though he can make any correction in the sale certificate to make it conform with the proclamation of sale, if he is approached for the purpose, as a consequential or incidental exercise of the authority vested in him to, grant a certificate of sale after the sale is confirmed. in ragho prasad v. mewa lal (1911) 84 all 223 it was held by their lordships of the privy council that an order for sale passed without jurisdiction conveyed no property to the person declared to be the purchaser. on the same principle a sale held by a court having no jurisdiction, in execution of a decree to sell property not situated, within its territorial limits, was held, in prem chandra dey v. makhoda debi (1890) 17 cal 699 (f b), to be a nullity, and.....
Judgment:

Kanhaiya Lal, J.

1. In execution of a decree held by Nand Lal against Mt. Chanda Dei and Kameshri Singh, certain property was put up to sale as ancestral property, belonging to the Judgment-debtors, by the Collector. The sale was held on the 20th November 1916 and confirmed on the 2nd January 1917. The property was purchased by Badan Singh, who obtained a certificate of sale on the 4th April 1917 from the Collector, and in pursuance of that certificate of sale he subsequently obtained formal possession from the civil Court on the 23rd May 1917. When the auction-purchaser applied for the entry of his name in the revenue papers, the judgment-debtors filed an objection as to the nature or extent of the interest purchased by the auction-purchaser, and while that application was pending, the judgment-debtors made an application to the Collector, asking that the certificate of sale should be corrected, to bring it into conformity with the property actually sold, as specified in the proclamation of sale. This application was made on the 12th June 1917, long after the sale had been confirmed and formal possession delivered by the civil Court to the auction-purchaser.

2. The Collector, however, proceeded to enquire into the application and on the 18th November 1917 he passed an order setting aside the sale by reason of, what he described as 'grave confusion' in describing the property intended to be sold, and he directed a fresh sale to be held after ascertaining from the civil Court whether the sale was to be effected in respect of the rights of the judgment-debtors in the said property as mortgagors, or as mortgagees or both. At the same time he directed the stay of the mutation proceeding arising out of the previous sale.

3. The validity of that order is challenged by the plaintiffs in the present suit and both the Courts below have come to the conclusion that the order of the Collector, setting aside the sale, was without jurisdiction and that the sale of the 20th November 1916 gave a good title to the plaintiff. The question for consideration in this appeal is whether the Collector had jurisdiction to sat aside the sale after it had been confirmed by him and the proceedings had been re-transmitted to the civil Court which had transferred the decree to him for execution. It is suggested on behalf of the defendants-appellants that the Collector had power to review his previous order confirming the sale. But there is nothing in his order to suggest that he was exercising that power. On the other hand, the Collector referring to the proceedings connected with the sale, pointed out that there had been some confusion in describing the property intended to be sold, and that the property had fetched in consequence an inadequate value, and he proceeded to hold that there was in consequence sufficient ground for interfering with the sale after the expiry of the ordinary period of objection.

4. Section 70(1) of the Code of Civil Procedure empowers the Local Government to make rules for the transmission of the decree for the sale of certain classes of property from the civil Court to the Collector, and for regulating the procedure of the Collector and his subordinate in executing the same and for re-transmitting the decree from the Collector to the Court. It further empowers the Local Government to make rules for appeals from orders made by the Collector or any gazetted subordinate of the Collector to whom the proceedings may have been transferred to superior revenue authorities and also for revision by such superior revenue authorities. Sub-section (2) of Section 70 goes on to provide that the power conferred by the rules made under the previous sub-section upon the Collector or upon any appellate or revisional authority shall not be exercisable by the 'Court' implying thereby the Court which had transmitted the decree for execution or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to the decrees or orders of such Court. It does not prohibit a Court from taking cognizance of a suit intended to question the validity of the exercise by the Collector of a jurisdiction which is not vested in him, for Section 9 of the Code of Civil Procedure gives the civil Courts jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. A suit in which a right to property is involved is a suit of a civil nature, and if the Collector had no jurisdiction to set aside the sale after he had confirmed it and re-transmitted the decree to the civil Court, the validity of that order, so far as it affects the title vested in the auction-purchaser, can be legitimately questioned by the party concerned in the civil Court.

5. The rules framed by the Local Government under Section 70 of the Code of Civil Procedure provide that where a sale is held and confirmed by the Collector, the Collector shall as soon as may be after the confirmation of a sale, re-transmit the decree and all papers received therewith to the Court by which the decree was transmitted together with a report of its proceedings and an account showing the moneys realized under the decree and the sum available at the disposal of the Court. It further lays down that all subsequent proceedings in connexion with the decree and delivery of possession to the purchaser shall be taken under the orders of the Court transmitting the decree for execution.

6. The Collector has no power left interfere with the sale or to set it aside after it has been confirmed and the decree re-transmitted to the civil Court, though he can make any correction in the sale certificate to make it conform with the proclamation of sale, if he is approached for the purpose, as a consequential or incidental exercise of the authority vested in him to, grant a certificate of sale after the sale is confirmed. In Ragho Prasad v. Mewa Lal (1911) 84 All 223 it was held by their Lordships of the Privy Council that an order for sale passed without jurisdiction conveyed no property to the person declared to be the purchaser. On the same principle a sale held by a Court having no jurisdiction, in execution of a decree to sell property not situated, within its territorial limits, was held, in Prem Chandra Dey v. Makhoda Debi (1890) 17 Cal 699 (F B), to be a nullity, and to convey no rights to the auction-purchaser.

7. It has been urged on behalf of the defendants-appellants that an appeal had been filed from the order of the Collector setting aside the sale to the Commissioner and upon a reference by the Commissioner, the Board of Revenue decided to uphold the order passed by the Collector setting aside the sale. But if the order passed by the Collector was without jurisdiction the fact that such order was upheld by the Board of Revenue would make no difference. The auction-purchaser is entitled to say that the order setting aside the sale was passed after the Collector had ceased to have any authority over the execution proceeding on the re-transmission of the decree to the civil Court, and the title, which is vested in him under the certificate of sale after it was confirmed by the Collector is a good and subsisting title capable of being enforced through a competent Court.

8. It appears that the judgment-debtors were originally mortgagees of the disputed property but had subsequently purchased the right, title and interest of four of the descendants of the original mortgagor and had thus acquired a portion of the equity of redemption. It does not appear what was the nature of the original interest proclaimed for sale, and whether the property described in the certificate for sale corresponded with the property which was mentioned in the proclamation of sale. The certificate of sale describes the properties sold as, the right, title and interest which the judgment-debtors had acquired by the purchase of the equity of redemption from the four persons aforesaid and it purports to include the mortgagee rights which the judgment-debtors held in those properties, and which had merged in the equity of redemption when the judgment-debtors purchased the same. The rights of the parties to the sale proceedings are determined by the certificate of sale which finally vests the property in the auction-purchaser, and subject to any mistakes in the certificate of sale, which it is always open to the Court or officer granting the certificate of sale to correct, the title so acquired cannot be afterwards disturbed in any subsequent proceeding at the instance of any person who was a party to the confirmation of the sale. The appeal, therefore, fails and is dismissed with costs.

Ashworth, J.

9. I concur. There can be no question that the Collector's order, in setting aside the sale after he bad confirmed it, was ultra vires. Nor will the fact that the order of the Collector was upheld in appeal and revision in higher Courts of revenue, render it binding on a civil Court, in a suit for declaration as to proprietary title. The jurisdiction of the civil Court is only affected by action of the Collector within the scope of the authority conferred upon him by Section 70 of the Civil Procedure Code, and the rules made under that section.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //