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Kadhey Mal Vs. Murtaza Ali and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All550
AppellantKadhey Mal
RespondentMurtaza Ali and anr.
Cases Referred and Krishna Das v. Ram Gopal
Excerpt:
.....the relevant provisions of the law bearing on this subject, we are clearly of opinion that the collector had no jurisdiction left to confirm the sale after the court's order of stay. 3. it is perfectly clear that the judgment, debtor could not move the collector to take action under section 5, agriculturists' relief act, and if he had made an application to the collector he would have been referred to the court which passed the decree. the application clearly implied an objection to the execution proceedings being continued because if the decree was to be converted into an instalment decree, the original decree which was being executed by the collector would stand superseded. the order of the court asking the collector to stay further proceedings read with the application on which it.....order1. this is an application for revision by an auction purchaser against an order passed by the civil judge of bareilly refusing to deliver possession to him of the property which he purchased at an auction sale held in execution of a decree. the decree in the execution of which the applicant was declared to be the auction, purchaser was a decree for sale. on an application for execution being made by the mortgagee the court which had passed it sent it to the collector for execution, the property sought to be sold being such as could be sold only by the collector under section 68, civil p.c. the auction sale was held by the assistant collector to whom the collector had delegated his power of sale. the applicant was declared to be the purchaser on 21st september 1935. before the sale.....
Judgment:
ORDER

1. This is an application for revision by an auction purchaser against an order passed by the Civil Judge of Bareilly refusing to deliver possession to him of the property which he purchased at an auction sale held in execution of a decree. The decree in the execution of which the applicant was declared to be the auction, purchaser was a decree for sale. On an application for execution being made by the mortgagee the Court which had passed it sent it to the Collector for execution, the property sought to be sold being such as could be sold only by the Collector under Section 68, Civil P.C. The auction sale was held by the Assistant Collector to whom the Collector had delegated his power of sale. The applicant was declared to be the purchaser on 21st September 1935. Before the sale could be confirmed by the Collector, who alone could do it, the judgment-debtor made an application to the Court which had passed the decree for action being taken under Section 5, Agriculturists' Relief Act, which was passed in the meantime. He 'prayed that interest be reduced and the decretal amount be made payable by instalments. He also prayed that the proceedings of execution of decree which had been sent to the Collector be recalled. The Court entertained the application under Section 5 of the Act, as it was bound to do, and sent an order to the Collector staying further proceedings for confirmation of the sale. The Collector did not comply with the order of the Court either in disregard or ignorance of that order and confirmed the sale on 18th February 1936. The judgment debtor's application under Section 5, Agriculturists' Relief Act, was taken up by the civil Court in due course and it was converted into an instalment decree. The Collector eventually re-transmitted the record of the case to the civil Court where alone possession could be given to the auction-purchaser. The latter made an application to the Court under order 21, Rule 95 or Rule 96, Civil P.C., for delivery of possession. The Court rejected this application. He has come to this Court in revision.

2. It is contended on his behalf that the civil Court had no jurisdiction to order stay of the proceedings before the Collector, that the Collector had every jurisdiction to confirm the sale, and that the sale having been confirmed and a certificate having been issued to the auction, purchaser, the Court has no option but to deliver possession under Order 21, Rule 95 or Rule 96, Civil P.C. This argument proceeds on the assumption that it was open to the Collector, in the circumstances already stated, to proceed to confirm the sale and issue the usual sale certificate. Having carefully considered the relevant provisions of the law bearing on this subject, we are clearly of opinion that the Collector had no jurisdiction left to confirm the sale after the Court's order of stay. Though the order was called as an order of stay, in substance it was an order under Rule 3 of the Government Notification in respect of sale of agricultural land by the Collector under Section 68, Civil P.C. That rule provides:

If, after the decree has been transmitted, any claim to the property ordered to be sold, or any objection to the sale be preferred to the Court that ordered sale, the Court may if it sees fit, recall the decree and proceed to dispose of the claim or objection. When, notwithstanding such claim or objection, the order for sale of the property is maintained by the Court, the decree shall be re-transmitted to the Collector. If such claim or objection be preferred to the Collector, the claimant or objector shall be referred by him to the Court that ordered sale.

3. It is perfectly clear that the judgment, debtor could not move the Collector to take action under Section 5, Agriculturists' Relief Act, and if he had made an application to the Collector he would have been referred to the Court which passed the decree. The judgment-debtor rightly applied to the Court passing the decree and under Section 5, Agriculturists' Relief Act, the Court was bound to entertain the application and it did entertain it. The application clearly implied an objection to the execution proceedings being continued because if the decree was to be converted into an instalment decree, the original decree which was being executed by the Collector would stand superseded. The judgment-debtor expressly asked for the decree being recalled by the Court. The order of the Court asking the Collector to stay further proceedings read with the application on which it was passed can only mean an order of recall under Rule 3. Where the Court directs the Collector, in circumstances like these to stay further proceedings the order is in substance one of recalling the decree. It is termed as an order of stay because the Court contemplates the possibility of re-transmission of the proceedings to the Collector. The next question is whether the confirmation of sale is in the circumstances of the case valid and binding. We think that the Collector ceases to have jurisdiction to sell or to confirm the sale, if one has already taken place, after the Court passing the decree recalls it under Rule 3. Anything done by the Collector during the time that the order of recall subsisted is without jurisdiction. It follows that the order confirming the sale passed by the Collector in this case conferred no right on the auction-purchaser. The subsequent issue of a sale certificate cannot improve the position of the auction-purchaser. Unless an auction sale is validly confirmed no sale certificate can operate to create a title in the auction-purchaser.

4. Another ground on which the title of the applicant can be questioned is that the decree in execution of which he was declared to be the auction-purchaser was superseded by another decree under Section 5, Agriculturists' Relief Act. The delivery of possession to an auction purchaser is part of the execution proceedings, and if before delivery of possession is made under Order 21, Rule 95 or Rule 96, the decree itself is for some reason or other nullified, the auction-purchaser cannot take possession. The lower Court in this case rightly refused to deliver possession but declared the auction-purchaser to be entitled to a refund of the purchase money paid by him. Learned Counsel for the applicant referred to Shahzad Singh v. Hanuman Rai A.I.R. 1924 All. 704 and Krishna Das v. Ram Gopal : AIR1928All558 in support of his contention that the civil Court had no jurisdiction to interfere with the proceedings which the Collector could take in the execution of the decree transmitted to him. As a general proposition no exception can be taken to it. But Section 70(2), Civil P.C., is clear on the point. It provides:

A power conferred by rules made under Sub-section (1) upon the Collector or any gazetted subordinate of the Collector, or upon any appellate or revisional authority, shall not be exercisable by Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court.

5. Where exclusive power has been given to the Collector in executing the decree sent to him, the Court cannot pass any order which may come in conflict with that of the Collector. The nature of the orders which were in question in the two cases referred to above was such that the order of the civil Court would have come in conflict with the order of the Collector who had exclusive jurisdiction in the matter. In the present case the civil Court did not pass any order which was within the exclusive jurisdiction of the Collector. It merely exercised a power which is expressly reserved to it by Rule 3 already discussed in detail. Accordingly we hold that neither of the two cases referred to above supports the contention of the applicant. For the reasons stated above we dismiss this application for, revision with costs.


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