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Aijaz Ahmad Vs. Nazirul Hasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All868; 158Ind.Cas.753
AppellantAijaz Ahmad
RespondentNazirul Hasan and anr.
Cases ReferredNand Kishore v. Badan Singh
Excerpt:
.....of the execution case has been retransmitted to the civil count, if he is satisfied that the decree-holder, by the exercise of fraud, kept the judgment-debtor ignorant of the execution proceedings culminating in the sale of the property and of the confirmation of sale, when as a consequence of his fraud the decree-holder succeeded in purchasing the property of the judgment-debtor for much less than its real value. he accordingly recommended that the sale be set aside. in our judgment this contention is well-founded and ought to prevail. ). it is therefore manifest that an order passed by a collector either confirming or setting aside a sale is a judicial order, and the question that arises for consideration in the present appeal is whether or not the collector has inherent power to..........of the execution case has been retransmitted to the civil count, if he is satisfied that the decree-holder, by the exercise of fraud, kept the judgment-debtor ignorant of the execution proceedings culminating in the sale of the property and of the confirmation of sale, when as a consequence of his fraud the decree-holder succeeded in purchasing the property of the judgment-debtor for much less than its real value.2. the plaintiff-respondent held a decree for costs for a sum of rs. 1,585 against mohammad munawar, the predecessor in interest of the defendants. the plaintiff applied for execution of the decree by attachment and sale of 1 anna 2 pies share out of 4 annas 4-2/7 pies in village sarai kheta belonging to the judgment-debtor. the civil court transferred the decree for.....
Judgment:

Iqbal Ahmad, J.

1. The question of law that arises in the present appeal is whether a Collector has jurisdiction to set aside the sale of immovable property held in execution of a decree transferred to him by the Civil Court in accordance with the provisions of Section 68, Civil P.C., after the sale has been confirmed by him and the record of the execution case has been retransmitted to the Civil Count, if he is satisfied that the decree-holder, by the exercise of fraud, kept the judgment-debtor ignorant of the execution proceedings culminating in the sale of the property and of the confirmation of sale, when as a consequence of his fraud the decree-holder succeeded in purchasing the property of the judgment-debtor for much less than its real value.

2. The plaintiff-respondent held a decree for costs for a sum of Rs. 1,585 against Mohammad Munawar, the predecessor in interest of the defendants. The plaintiff applied for execution of the decree by attachment and sale of 1 anna 2 pies share out of 4 annas 4-2/7 pies in village Sarai Kheta belonging to the judgment-debtor. The Civil Court transferred the decree for execution to the Collector. A proclamation of sale was issued by the Collector showing an encumbrance of Rs. 30,000 on the 4 annas 4-2/7 pies share. The 1 anna 2 pies share that was advertised for sale was actually sold by the Collector on 22nd September 1922 and was purchased by the decree-holder for a sum of Rs. 1,000 and the sale was confirmed by the Collector on 26th October 1922. The record of the execution case was thereafter sent back by the Collector to the Civil Court in May 1923. The decree-holder obtained the sale-certificate on 20th August 1925, and formal delivery of possession was made over to him on 14th October 1925.

3. Within a month of the date of delivery of possession, viz., on 12th November 1925, Mohammad Munawar, the judgment-debtor, filed an application before the Collector for setting aside the sale. The application was based mainly on the allegation, that the decree-holder by the exercise of fraud kept the judgment-debtor utterly uninformed of the execution proceedings and thus succeeded in purchasing property of considerable value at a very low price. It was stated in the application that the decree-holder intentionally did not allow notice of the execution proceedings to be served on the judgment-debtor, and took steps to prevent the judgment-debtor from getting information of the proclamation of sale or of the fact that the property was ordered to be sold. It was further alleged that no proclamation of sale was made by beat of drum as required by the rules and that, in consequence of the fraudulent proceedings of the decree-holder, no intending purchasers except the decree-holder were present on the date fixed for sale and thus the decree-holder succeeded in purchasing property of the value of Rs. 21,000 for a sum of Rs. 1,000 only. The judgment-debtor also asserted that the decree-holder, to conceal his fraudulent proceedings and to keep the judgment-debtor ignorant of the fact of the auction-sale, intentionally did not obtain the sale certificate for about three years after the date of the sale and, with the same object in view, omitted to take out execution for the remaining decretal amount, viz., the sum of Rs. 585 and allowed the same to become time barred.

4. The application was filed long after the expiry of 30 days from the date of the sale, but the judgment-debtor claimed the benefit of the provisions of Section 18, Limitation Act, on the ground that he was, by the fraud of the decree-holder, kept out from the knowledge of the fact of the sale till 14th October 1925 the date on which possession was delivered to the decree-holder. The judgment-debtor accordingly maintained that the period of limitation should be computed from the date on which the fraud of the decree-holder came to his knowledge, viz., from 14th October 1925, and as the application was made within 30 days of that date, it was within time.

5. The application was opposed by the decree-holder and tile Collector called for a report from the Tahsildar. The report of the Tahsildar was in favour of the judgment-debtor. He reported that the decree-holder, who was the lamba.rdar of the village 'abused his position by practising fraud on the drummer and the witnesses' who attested the sale-proclamation, with the result that no purchaser except the decree-holder was present at the time of the auction-sale and that the decree-holder succeeded in getting his bid of Rs. 1,000 accepted by showing an encumbrance of Rs. 33,000 which 'was also a trick played by' him. He held that the value of the property was much more than Rs. 1,000, and attributed the omission of the decree-holder to obtain the sale certificate for a period of about three years and to execute the decree for the sum of Rs. 585 to his anxiety to keep the judgment-debtor ignorant of the fact of the sale. He accordingly recommended that the sale be set aside. The Collector agreed with the opinion expressed by the tahsildar and passed an order setting aside the sale on 4th January 1926.

6. The suit giving rise to the present appeal was then brought by the decree-holder auction-purchaser, for a declaration that he was the owner in possession of the 1 anna 2 pies share and that the order of the Collector setting aside the sale was without jurisdiction. In the alternative, the plaintiff prayed for a decree for possession of the 1 anna 2 pies share. Mohammad Munawar resisted the suit on the same allegations on which the application for setting aside the sale was based. Mohammad Munawar died during the pendency of the suit in the Court below, and his legal representatives were brought upon the record as defendants to the suit.

7. At the trial the plaintiff wanted to adduce evidence to prove that the proclamation of sale was made by beat of drum, and that the judgment-debetor had full knowledge of the execution proceedings and of the sale of the property. But the counsel for the defendant judgment-debtor objected to the reception of the evidence on the ground, that if the Collector had jurisdiction to set aside the sale, it was not open to the Civil Court to go into the question whether or not the Collector was right in holding that the sale was vitiated by fraud that was perpetrated by the decree-holder. The Court below accepted the contention of the defendant's counsel and held that the only question that called for determination in the case was whether or not the Collector had jurisdiction to set aside the sale after he had confirmed the same. It accordingly proceeded to hear arguments on the point, and held that the Collector had no jurisdiction either to set aside the sale, or to review the order confirming the sale, after the sale had been confirmed and the record of the execution case was re-transmitted to the Civil Court. It observed that after the confirmation of the sale only the Civil Court had jurisdiction to set aside the sale on the ground of fraud, and accordingly, the order passed by the Collector on 4th January 1926, setting aside the sale was without jurisdiction. It therefore passed a decree in the plaintiff's favour for possession of the share in dispute. In support of its view the Court below placed reliance on the decision of this Court in Nand Kishore v. Badan Singh 1926 All. 575. It was, held in that case that after a sale has been confirmed by the Collector and the decree has been re-transmitted to the Civil Court, the Collector has no jurisdiction to set aside the sale, though he is competent to

make any correction in the sale-certificate to make it conform with the proclamation of sales as a consequential or incidental exercise of the authority vested in him to grant a certificate of sale after the sale is confirmed.

8. One of the legal representatives of Mohammad Munawar has, come up in appeal to this Court, and it is argued, on his behalf that the view of law taken by the Court below is erroneous. In our judgment this contention is well-founded and ought to prevail.

9. That the orders passed by a Collector confirming or setting aside a sale held by him in execution of a decree transferred to him in accordance with the provisions of Section 68, Civil P.C., are judicial orders admits of no doubt. The Local Government has, in exercise of the powers vested in it by Section 70(1), Civil P.C., made rules conferring upon the Collector the power to sot aside a sale on grounds similar to those provided for by Order 21, Rules 89 and 90, Civil P.C., (vide Rules 996 and 997 of Manual of Orders of the Government of the United Provinces in the Revenue Department, Vol. 1), similarly Rule 998 framed by the Local Government confers on the Collector the power to confirm or to pass an order setting aside the sale on grounds similar to those I provided for by Order 21, Rule 92, Civil P.C. The orders passed by the Collector or his gazetted subordinates are further made appealable by the rules to higher revenue authorities. It cannot therefore be disputed that the Collector has powers similar to the powers conferred on the Civil Courts by the Civil Procedure Code to confirm or to set aside a sale. The order of the Collector confirming or setting aside a sale therefore stands on an identical footing with similar orders passed by the Civil Courts in execution proceedings, and as the orders passed by Civil Courts I are judicial orders the orders passed by the Collector must necessarily be judicial orders. Further it is provided by the Code itself that in executing a decree transferred to the Collector under Section 68, the Collector and his subordinate shall be deemed to be acting judically (vide Section 71, Civil P.C.). It is therefore manifest that an order passed by a Collector either confirming or setting aside a sale is a judicial order, and the question that arises for consideration in the present appeal is whether or not the Collector has inherent power to recall and cancel his order confirming or setting aside a sale if he is satisfied that it is necessary to do so for the ends of justice or to prevent abuse of the process to which resort must be had by him in executing the decree, transferred to him under Section 68, Civil P.C.

10. It is well settled that a Court has I inherent jurisdiction to recall and cancel its invalid orders, and to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. On principle there is no difference between an order passed by a Court and an order passed by an officer acting judicially. The orders passed by both are judicial orders, and if a Court has inherent power to correct its judicial orders there seems no justification for holding that an officer acting judicially has not similar powers. If a Court has power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, an officer acting judicially must on principle have similar powers. It may be that the Collector when executing a decree transferred to him under Section 68, Civil P.C., is not a 'Court', but that fact by itself cannot divest him of the power to correct or to cancel his judicial orders provided valid grounds exist for doing so.

11. It is true that neither a Court nor an officer acting judicially has power to dispense with the provisions of any legislative enactment or to do that which is prohibited by any rule of law, but there is no rule of law that debars a Collector from recalling his order confirming a sale if he is satisfied that the order ought to be recalled in order to secure the ends of justice. Rule 998 framed by the Local Government prohibits the institution of a suit for challenging an order confirming or setting aside a sale, but that rule is restricted in its scope to the grounds mentioned in Rules 996 and 997 for setting aside a sale, and has no application to cases in which the order confirming the sale has been secured by the auction-purchaser by the exercise of fraud. Further, Rule 998 prohibits the institution of a suit and not the exercise of the inherent power possessed by an officer acting judicially to correct his judicial orders. Fraud vitiates all proceedings including judicial orders and if the Collector is satisfied that the decree-holder perpetrated fraud not only in publishing or conducting the sale, but also in keeping the judgment-debtor ignorant of the fact of the confirmation of the sale, he has inherent power to set aside the sale with a view to prevent an abuse of the proceedings held by him.

12. But it is argued that the Collector becomes functus officio after re-transmitting the decree to the Civil Court and thereafter has no jurisdiction to set aside the sale and, in support of this contention, reliance is placed on the decision in Nand Kishore v. Badan Singh 1926 All. 575. We are unable to agree with this contention. The re-transmission of the decree to the Civil Court no doubt puts an end to the jurisdiction of the Collector to take further proceedings in execution of the decree, but it cannot divest him of the inherent jurisdiction possessed by him to correct his judicial orders or to review the same. The inherent power vested in a Court or in a judicial officer to set right judicial orders previously passed does not depend on the continuance of the proceedings in the course of which the order was passed, but can be exercised even if the proceedings, have terminated. This was the view taken by a Full Bench of this Court in Muhammad Hanif v. Ali Raza 1933 All 783. In that case a decree was transferred for execution by the Subordinate Judge of Cawnpore to a Civil Court in Allahabad. An application for execution was made in the Allahabad Court, to which the judgment-debtor objected on the ground that the decree had been adjusted out of Court under a private arrangement. On the date fixed for the hearing of the objection the decree-holder was absent and his pleader stated that he had no instructions. The Allahabad Court then heard the objection and allowed it ex parte. The execution case was then struck off and a certificate was sent to the Cawnpore Court stating that, the decree had been fully satisfied and that the case had been disposed of. Thereafter the decree-holder made an application in the Allahabad Court for the setting, aside of the ex parte order on the ground that he had been prevented by sufficient cause from not appearing on the date of hearing. The Court entertained the application and set aside the previous ex parte order allowing the objection and dismissing the application for execution and restored the execution case to the file of pending cases. The Full Bench held that the Allahabad Court had jurisdiction to pass the order that it did and observed that:

The decree-holder applied invoking inherent jurisdiction of the Court to sot aside an ex parte order to meet the ends of justice. The proper Court to entertain such an application was obviously the very Court which had passed the order which was sought to be set aside. The inherent jurisdiction vested in that Court, and not in the Cawnpore Court which could not properly consider the propriety of the previous order. If a question arose for a review of judgment or for setting aside an ex parte order, that jurisdiction could be properly exercised by the Court which passed the previous order. This is not a case of a further execution of the decree, which cannot be ordered after the satisfaction had been recorded and certificate sent to the original Court, but a question as to whether a previous proceeding should or should not be reopened.

13. These observations make it abundantly clear that the inherent jurisdiction possessed by a Court to which a decree is sent for execution does not terminate with the conclusion of the execution proceedings in that Court. It therefore follows that the Collector is not divested of the inherent jurisdiction possessed by him simply because of the termination of the execution proceedings and the re-transmission of the decree to the Civil Court. In Nand Kishore v. Badan Singh 1926 All. 575, the order of the Collector setting aside the sale was sought to be supported in this Court on the ground that the Collector could in exercise of the power of review vested in him set aside a sale. But this Court overruled this contention on the ground that there was nothing in the order of the Collector in that case to suggest that he was exercising the power of review. In the case before us we however find that in the application that was made by Mohammad Munawar for setting aside the sale he requested the Collector to review his order confirming the sale. Apart from this in our judgment the decision in Nand Kishore v. Badan Singh 1926 All. 575 cannot be reconciled with the Full Bench decision of this Court noted above.

14. For the reasons given we hold that the Collector had jurisdiction to set aside the sale and the propriety of his order could not be called into question in the Civil Court. We accordingly allow this appeal, set aside the decree of the Court below and dismiss the plaintiff's suit with costs here and below.


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