1. This appeal arises under peculiar circumstances. The appellant Shahzad Singh obtained a mortgage decree for sale of the property of Hanuman Rai and others, the final decree having been passed some time in December, 19:20. The appellant put in his application for execution of the decree on 1st July, 1921, and declared that the property was ancestral. He also stated that the property was subject to no incumbrances. His duty included the production of a certificate from the Sub-Registrar as to whether there was any incumbrance or not, and this he performed. But it was the duty of the Collector and the Collector alone to find out with the assistance of both the decree-holder and the judgment-debtor what were the incumbrances that were to be notified as existing over the property. The decree was transmitted to the Collector for execution, apparently with a note that there were no incumbrances over the property. The property was sold by the Collector and the decree-holder himself purchased the same for the sum of Rs. 5,200. He gave a certificate of satisfaction of his own decree and had under the rules to pay the balance. He then discovered that there was a heavy incumbrance over the property, the; date of which was more than 12 years prior to the date of the sale. It was On this account that this incumbrance was not shown in the Sub-Registrar's certificate, which was only for 12 years. The decree-holder naturally found that he had made a bad bargain and attempted to resile from it. He did not put in the balance of the purchase money and he asked the Collector to re-sell the property declaring the incumbrance which he discovered. The Assistant Collector, who was in charge of the sale, refused to hear him, being of opinion that he could not go behind the orders of the civil court. An appeal was lodged to the Collector and he also, thought that the remedy of the appellant lay in the civil court. He said:
If the civil courts agree to this, the sale will be set aside. I agree with the sale officer in not encroaching on the jurisdiction of the civil courts and I dismiss the appeal with costs.
2. The appellant then went to the civil court and asked the learned Subordinate Judge to declare that the property was really non-ancestral. His object was clear. He wanted that if the property was declared non-ancestral, the civil court would call back the papers and proceed with the sale afresh. If that had happened, he would have been entitled to show to the civil court that there was an incumbrance. The learned Subordinate Judge, however, held that once the case had been transferred to the Collector, the civil court had no power to pass any order in that case. I entirely agree with this view which was also upheld by the learned District Judge. In Chapter IV, Rule IX of the General Rules (Civil) of 1911 for civil courts, it is expressly laid down that 'A civil court has no power to interfere with the procedure of a Collector in the execution of a decree which has been transferred to him under Section 68 of Act V of 1908.' The question whether the property was ancestral or not was already decided between the parties and that decision was binding on both. The decree having been sent to the Collector for execution, the civil court ceased to have any jurisdiction over the execution proceedings. All that it could do was to recall the papers. But the result would be that when the decree-holder again applied for execution, the papers would have to be sent back to the Collector, the property having been declared to be ancestral.
3. The appellant has now come to this Court for his remedy. I am afraid we cannot give him any. But it seems to me perfectly clear that the learned Assistant Collector arid the Collector were wrong in assuming that they had no jurisdiction to find out what were really the incumbrances over the property. In spite of the sale haying taken place, it is for the Collector to decide whether he would re-sell the property or not in order to realize the balance of the purchase-money. Under rules framed by the Local Government (rule No. 26) it is entirely in the discretion of the Collector to decide whether he would or not realize the balance of the purchase-money by re-sale. It is to be noted that the decree-holder is not at all at fault. If he-was not aware of any incumbrance in spite, of an inquiry in the Sub-Registrar's office, it was no fault of his. His conduct in purchasing the property for Rs. 5,200 shows that he was really unaware of the incumbrance. Otherwise he would not have paid such a large value for the property. As I have said, the learned Collector thought that it was for the civil court to give directions in the matter and not for him or the Assistant Collector to do anything. I am sure if the decree-holder goes again to the Collector and represents how the law stands on the point, his prayer will be granted. In this appeal I am afraid nothing can be done. I would, therefore, dismiss the appeal with costs.
4. I concur generally. The rules which determine the respective functions of the civil court and of the Collector when a decree has been transferred to the latter under Section 68 of the Code of Civil Procedure are, however, not the rules framed by this Court but the rules framed by the Local Government under Section 70 of the Code of Civil Procedure. Those rules are contained in the Board of Revenue Circulars, Volume I, Department II, Circular No. 25. Under Rules 10, 11 and 18 of those rules it is the duty of the Collector to ascertain the existence of incumbrances and to issue the sale proclamation. I concur in the order proposed.
5. The appeal is dismissed with costs.