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Rajah of Venkatagiri Vs. Atmakuri Ramaswami - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1947Mad262; (1946)2MLJ476
AppellantRajah of Venkatagiri
RespondentAtmakuri Ramaswami
Cases ReferredJagannatha Pillai v. Kathaperumal Pillai
Excerpt:
- - thereafter there was an objection by the present respondent on the ground that he had paid the arrears of rent due for faslis 1346 and 1347 and that by reason of section 15 of madras act iv of 1938, the decree for earler arrears must be deemed to have been satisfied. clearly that section did not empower the sub-collector to pass the order which he passed. there can be little doubt that the proceedings were totally irregular though his order may well be a substantially just order. 76 holds good even under the amended estates land act......before the sub-collector must be deemed to be proceedings under order 21, rule 90, of the code of civil procedure and on the strength of the decision of patanjali sastrj,j., in suryanamyana v. sree rajah sobhanadri appa rao bahadur : (1940)2mlj584 the district judge held that no appeal lay.2. it is contended before me firstly, that though the sub-collector had no jurisdiction to proceed under order 21, rule 90, if he purports to do so, his order under that section will attract the right of appeal prescribed under order 43, rule 1(1) or alternatively; if the decision already cited must be taken to negative that contention, the finding of the sub-collector that the sale was null and void for want of proper notice brings the case within the decision of the full bench in rajagopala ayyar v......
Judgment:

Wadsworth, J.

1. This appeal and the civil revision petition which is filed in the alternative, arise out of an order of the District Judge of Guntur dismissing an appeal from the order of the Sub-Collector of Ongole setting aside a sale held in execution of a decree for rent under the Madras Estates Land Act. The appellant here is the Rajah of Venkatagiri who is the decree-holder. The decree was passed on the 20 th August, 1936, against the respondent and three others for rent on a particular holding, it would appear that belore this decree was passed the holding had become sub-divided and an application had been made for the issue of separate pattas, but, we have no evidence of the precise date on which this division of the land was recognised by the land-holder. Madras Act IV of 1938 came into force on the 22nd March, 1938. In 1939 the decree-holder sought to execute the decree by the sale of the holding. Thereafter there was an objection by the present respondent on the ground that he had paid the arrears of rent due for faslis 1346 and 1347 and that by reason of Section 15 of Madras Act IV of 1938, the decree for earler arrears must be deemed to have been satisfied. On this petition the Sub-Collector passed the order ' Execution will proceed.' After a portion of the holding had been sold, there was a further petition by the respondent in which he alleged that he had sold some of the lands to one Perantalu and that separate pattas had been given to himself and his vendee, that he himself had paid the arrears for faslis 1346 and 1347 due on his separate patta and he prayed that the sale already held might be set aside. This petition was dismissed for the default of the petitioner. Again the respondent filed a petition to set aside the ex parte order and restore the petition and after various proceedings with which we are not now concerned the District Court directed the Sub-Collector to inquire into the objection petition and decide whether there was sufficient ground for setting aside the sale. Thereupon the Sub-Collector restored the petition to file and took up the inquiry into the objection petition and held that the proceedings in the sale were very irregular, particularly in that the decree-holder did not implead the alienee and did not give notice of the sale to the Official Receiver who was impleaded in the execution petition nor was the sale proclamation published in the manner required by Section 116 of the Estates Land Act. Without stating under what provision of law he was acting, the bub-Collector held that all these irregularities resulting in substantial injury to the judgment-debtor rendered it necessary to hold that the sale was null and void and hence it Was set aside. Against this decision an appeal was taken by the decree-holder to the District Court which held that the proceedings before the Sub-Collector must be deemed to be proceedings under Order 21, Rule 90, of the Code of Civil Procedure and on the strength of the decision of Patanjali Sastrj,J., in Suryanamyana v. Sree Rajah Sobhanadri Appa Rao Bahadur : (1940)2MLJ584 the District Judge held that no appeal lay.

2. It is contended before me firstly, that though the Sub-Collector had no jurisdiction to proceed under Order 21, Rule 90, if he purports to do so, his order under that section will attract the right of appeal prescribed under Order 43, Rule 1(1) or alternatively; if the decision already cited must be taken to negative that contention, the finding of the Sub-Collector that the sale was null and void for want of proper notice brings the case within the decision of the Full Bench in Rajagopala Ayyar v. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R .47 Mad. 288. so that the matter comes under Section 47 of the Code of Civil Procedure and an appeal will lie from the decision. The decision of the Bench in Jagannatha Pillai v. Kathaperumal Pillai (1927) 53 M.L.T. 688 : I.L.R. 51 Mad. 76which was passed under the Estates Land Act prior to the recent amendments was to the effect that Section 132 of the Estates Land Act by making the provisions of Chapter VI of the Act applicable to the execution by a Revenue Court of any decree for rent, provides a complete code of procedure in execution and Section 192 of the Estates Land Act which applies the provisions of the Code of Civil Procedure to proceedings under the Estates Land Act must be read subject to Section 132. Patanjali Sastri, J., in Suryanarayana's case : (1940)2MLJ584 already quoted held that the amendment of Section 192 did not affect the validity of the principle laid down in Jagannatha Pillai v. Kathaperumal Pillai (1927) 53 M.L.T. 688 : I.L.R. 51 Mad. 76. This decision has been followed by Horwill, J., in Sarvarayudu v. Venkata-rathnam (1945) 1 M.L.J. 333 where it was held that a suit brought by one of the parties under a decree, which would be barred under Section 47 of the Code of Civil Procedure if that section was applicable to proceedings in execution of a decree of a Revenue Court under the Madras Estates Land Act, was not so barred.

3. It seems clear that if the decision of Patanjali Sastri, J., in Suryanarayana v. Sree Rajah Sobhanadri Appa Rao Bahadur : (1940)2MLJ584 and that of Horwill, J., in the case just quoted are correct, whether this order of the Sub-Collector be deemed to be an order under Order 21, Rule 90 or an order under Section 47 of the Code of Civil Procedure, no appeal would lie. There cannot, I think, be any question in this case of the application of the rather debatable principle that the wrongful assumption of the jurisdiction under an appealable provision of law may attract the right of appeal which the law provides against the order when passed by the Court which has jurisdiction to pass it. In the present case, the Sub-Collector who passed this order did not purport to pass it under any stated provision of law. It is true that the decretal order as drafted quotes Section 131 of the Estates Land Act which makes provision only for the setting aside of sales on deposit of the sale amount by the defaulter. Clearly that section did not empower the Sub-Collector to pass the order which he passed. It seems that the Sub-Collector, without considering precisely what his powers were, took upon himself the right to set aside the sale merely because he thought the sale was a bad one. There can be little doubt that the proceedings were totally irregular though his order may well be a substantially just order.

4. I do not feel that there are any grounds for me to differ from the view taken by my learned brothers Patanjali Sastri and Horwill, JJ., that the principle embodied in Jagannatha Pillai v. Kathaperumal Pillai (1927) 53 M.L.T. 688 : I.L.R. 51 Mad. 76 holds good even under the amended Estates Land Act. It is true that there is a judgment of Kuppuswami Ayyar, J., in Peran Ambalagaran v. Venkatarama Naicker : AIR1943Mad656 which contains certain observations which seem to point in a different direction, but so far as the decision itself was concerned, it had nothing to do with execution and the learned Judge's attention does not seem to have been drawn to the decision in Suryanarayana v. Sree Rajah Sobhanadri Appa Rao Bahadur : (1940)2MLJ584 . There are moreover solid grounds of expediency which doubtless led the Legislature to prescribe a simplified execution procedure for decrees of Revenue Courts. It is not desirable that Revenue Courts should be given the function of deciding purely civil disputes between parties connected with execution and it is reasonable to suppose that it was the intention of the Legislature to lay it down that when the matter is merely one of getting a sale set aside on deposit the Revenue Court can do it, but if the parties wish to challenge a sale on grounds which strike at the root of its legality or if they wish to challenge the Execution by reason of some dispute of a civil nature relating to the rights of the parties, the proper Court to decide such matters is not the Revenue Court but the civil Court. At any rate there is a clear and simplified procedure laid down in the Estates Land Act and there is no reason why that procedure should be elaborated by the introduction of Section 47 of the Civil Procedure Code any more than it is to be elaborated by the introduction of Order 21, Rule 90.

5. My attention has been drawn to the decision of Devadoss, J., in Sundaraswamiar v. Narayanaswamiar : AIR1928Mad1107 in which the learned Judge without reference to the Bench decision in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 (to which he was a party) held that an application under Section 47 of the Code of Civil Procedure can be filed in a Revenue Court on a matter connected with rights under a mortgage created before the passing of Madras Act I of 1908. That decision seems to me with great respect to run contrary to the principle of the Bench decision in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 . I have not been shown that it has ever been followed by this Court and the decision of Horwill, J., in Sarvarayudu v. Venkataratnam : AIR1945Mad277 is directly contrary to that decision. It seems to me that to admit the right of a party to contest a sale in a Revenue Court by proceedings under Section 47 would be toanullify the rule laid down by the bench in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 to the effect that the Estates Land Act contains a simplified law of procedure in execution of rent decrees which excludes the application of the execution provisions of the Code of Civil Procedure.

6. I am therefore of opinion that the order of the Sub-Collector cannot be treated as an order either under Order 21, Rule 90 or under Section 47 of the Code of Civil Procedure and it does not purport to be under either of these provisions, at any rate expressly. It is no more than an irregular order passed Under Sections 131 and 132 of the Estates Land Act against which order no appeal lies. I have been asked to interfere in revision to rectify the errors in this order. No revision petition against the Sub-Collector's order has been filed before me. Although the order of the Sub-Collector appears to be irregular, it does not appear to be unjust and in effect what the Sub-Collector has done is to give the remedy which should properly have been obtained by the filing of a suit in a Civil Court. In the absence of any injustice in the order, I do not feel disposed to interfere in revision.

7. The result therefore is the appeal is dismissed with costs. The alternative revision petition is also dismissed; no separate costs.


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