Skip to content


Musammat Farhat-un-nissa Bibi and ors. Vs. B. Sundari Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in54Ind.Cas.801
AppellantMusammat Farhat-un-nissa Bibi and ors.
RespondentB. Sundari Prasad and ors.
Excerpt:
civil procedure code (act v of 1908), section 70 - local government, power of, to make rules--revenue court --execution of decree--finality of orders--suit to set aside order, maintainability of. - - it seems to us that the .appeal is bound to fail......the execution of that decree was transferred to the court of collector under the rules made by the local government under section 70 of the code of civil procedure. the property was sold by auction and the sale was set aside by the collector, but on appeal by the opposite party to the commissioner the collector's order was set aside and the sale was confirmed. the commissioner's order was appealed to the board of revenue but the appeal was dismissed. thereupon the plaintiffs brought the present suit and asked for a declaration that the sale made on the 20th of august 1914 was fraudulent and null and void and ineffectual according to law. the court below has dismissed the plaintiffs' suit on the ground that under the rules made by the local government no suit to set aside an order made.....
Judgment:

1. This is a plaintiffs' first appeal. A decree for sale of ancestral property belonging to the plaintiffs was passed by the Civil Court and the execution of that decree was transferred to the Court of Collector under the rules made by the Local Government under Section 70 of the Code of Civil Procedure. The property was sold by auction and the sale was set aside by the Collector, but on appeal by the opposite party to the Commissioner the Collector's order was set aside and the sale was confirmed. The Commissioner's order was appealed to the Board of Revenue but the appeal was dismissed. Thereupon the plaintiffs brought the present suit and asked for a declaration that the sale made on the 20th of August 1914 was fraudulent and null and void and ineffectual according to law. The Court below has dismissed the plaintiffs' suit on the ground that under the rules made by the Local Government no suit to set aside an order made under these rules can be brought by any person against whom such order has been made. The rule referred to is Rule 32 of the rules made by the Local Government in the last clause. The position taken up by the appellants before us, to put it simply, is that the order passed by the Revenue Courts confirming a sale of this deseription has not that finality which a similar order would have if it had been passed by the ordinary Civil Court, that the Local Government has no power to make any such rules under Section 70 of the Code of Civil Procedure as to give finality to the Revenue Court's order confirming the sale. It seems to us that the .appeal is bound to fail. In cases where ancestral property is involved, the decree under the rules made by the Local Government under Section 70, Clauses (1) (a), must be transmitted to the Court of the Collector for execution. Under sub Clauses (6) of the same section the Local Government has power to confer upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector. The Local Government has made such rules and it is, therefore, clear that it has conferred upon the Collector the power of passing an order of the same nature as the Civil Court would have passed and could have passed under Order XXI, Rule 92 : that is to say, an order which is final and absolute and cannot be questioned by a subsequent civil suit. Under subClauses (c) of Section 70, Clauses (1), the Local Government has power to arrange for appeals from the orders passed by Collectors under the rules framed by the Local Government : so that the appellate order passed by the Revenue Authorities has the same finality as the Collector's order would have had if it had been upheld. It is obvious to us that the law contemplated that the full powers exerciseable by the Civil Court in execution of a decree should be transferred to the Collector in certain cases and as we have pointed out above, one of the powers of the Civil Court is to pass an order which is final and cannot be questioned by a regular suit under Order XXI, Rule 92, Clauses 1, 2 and 3. In our opinion there is no force in this appeal. We, therefore, dismiss it with costs, including fees on the higher scale.


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