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Gnana Sambanda Pandara Sannadhi Vs. David Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1904)14MLJ433
AppellantGnana Sambanda Pandara Sannadhi
RespondentDavid Nadar
Excerpt:
- .....thereon and sold under the provisions of act ii of 1864 (madras). the sale was confirmed by the deputy collector in charge of the division in which the lands were situated and a certificate of sale was granted to the respondent, the purchaser at the sale. the respondent having applied to the district munsif within whose jurisdiction the lands lay, possession thereof was ordered and delivered under section 40 of act ii of 1864. this delivery took place pending an appeal to the collector of the district by the present appellant against the confirmation of the sale by the deputy collector and the collector having in the appeal set aside the sale, the district munsif who had ordered the delivery of possession to the respondent directed, on the appellant's application, restitution of the.....
Judgment:

1. Certain lands of the appellant were attached for arrears of land revenue due thereon and sold under the provisions of Act II of 1864 (Madras). The sale was confirmed by the Deputy Collector in charge of the Division in which the lands were situated and a certificate of sale was granted to the respondent, the purchaser at the sale. The respondent having applied to the District Munsif within whose jurisdiction the lands lay, possession thereof was ordered and delivered under Section 40 of Act II of 1864. This delivery took place pending an appeal to the Collector of the District by the present appellant against the confirmation of the sale by the Deputy Collector and the Collector having in the appeal set aside the sale, the District Munsif who had ordered the delivery of possession to the respondent directed, on the appellant's application, restitution of the land. On application for revision to this Court Boddam J., set aside the District Munsif's order.

2. The two points which arise for determination are :

1. Whether it was competent to the Collector to set aside the sale as he did?

2. Whether the District Munsif had power to grant restitution? The answer to both these must, it is clear, be in the affirmative.

3. Now as to the first; under the provisions of the Revenue Recovery Act, confirmation of sales held thereunder and the issue of certificates, etc, are all to be done by the Collector of the District. The exercise of similar power by a Deputy Collector in charge of a Division is by virtue of Act VII of 1857 (Mad.) taken along with the other enactment therein referred to--Mad. Reg. VII of 1828. And Clause 1 of Section 3 of that Regulation has to be taken together with Clause 3 of the same section and when thus read, it will be seen that the exercise by a Deputy Collector of the powers of a Collector is subject to the com-plete control of and supervision and revision by, the Collector of the District who may 'confirm, modify or annul' the order of his subordinate and issue ' any further order in the case as he may see fit.' We cannot follow the suggestion made by Mr. Krishnaswami Aiyar on behalf of the respondent that the effect of Act II of 1864 is that when once a Deputy Collector in charge of a Division has confirmed a sale, granted a certificate and proclaimed it, the power of the Collector of the District to interfere is at an end. It is quite obvious that no support in favour of this suggestion can be found in the provisions of the said Act, since according to those provisions the Collector of the District is the only authority entitled to act in such matters and the power of the subordinates of the Collector to deal with the same has to be derived altogether from outside the Act.

4. As to the second point Section 40 of Act II of 1864, which provides for the delivery by a court of competent jurisdiction of possession of lands sold under the Act, lays down that the Court shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the purchased lands had been decreed to the purchaser by a decree of the Court. With reference to this provision, Muthusami Aiyar and Parker, JJ., in appeal against appellate order No. 27 of 1889 held that an appeal lay to the District Judge against an order passed by a District Munsif under the said Section 40 of Act II of 1864, the learned Judges being of opinion that the intention of the Legislature was to place the purchaser for the purpose of recovery of possession of the land pur-chased in the position of a decree-holder and, that is, entitled to such remedies as are open to a decree-holder in execution proceedings. In this view it follows that the other party to the proceeding can claim and ought to be granted restitution as fully as if he were himself a party to a decree of the court the reversal of which gives rise to the right to restitution.

5. The order of the District Munsif which was set aside by Boddam, J.,was, therefore, one which it was competent to the District Munsif to pass and which in the circumstances was right. It ought to be added that, as according to the decision of Muthusami Aiyar and Parker, JJ.. cited above, it was open to the present respondent to have preferred an appeal against the order granting restitution no application for revision lay to this Court. The order of the learned Judge is reversed and that of the District Munsif restored with costs of this appeal and of the revision.


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