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Kaza Suryanarayana Vs. Sree Rajah Sobhanadri Appa Rao Bahadur Zamindar Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1940)2MLJ584
AppellantKaza Suryanarayana
RespondentSree Rajah Sobhanadri Appa Rao Bahadur Zamindar Garu and ors.
Cases ReferredGopalakrishnayya v. Narasimha Rao
Excerpt:
- - it was contended for him that order 21, rule 90 as well as order 43, rule 1(j) applies to proceedings under the estates land act and that therefore the petitioner's remedy was to appeal from the order now sought to be revised......to act under order 21, rule 90, civil procedure code, read with section 192 of the madras estates land act, though no application was made by the first respondent under that provision.2. learned counsel for the petitioner has challenged the validity of this order mainly on the ground that the court has no power to set aside the sale under order 21, rule 90, civil procedure code, as that provision is not made applicable by section 192 of the madras estates land act to sales in execution of decrees for rent passed under that act. the respondent raised a preliminary objection to the maintainability of the revision petition. it was contended for him that order 21, rule 90 as well as order 43, rule 1(j) applies to proceedings under the estates land act and that therefore the.....
Judgment:

Patanjali Sastri, J.

1. This is a petition to revise the order of the Deputy Collector, Nuzvid Division, setting aside a rent sale held on 19th December, 1936. The petitioner who is the Agraharamdar of Singanagudam village obtained a decree for arrears of rent due by a tenant and brought his holding to sale in execution of the decree. The Revenue Inspector, Nuzvid, was appointed as the selling officer and he posted the sale to be held on 19th December, 1936. Meanwhile on 2nd Depember, 1936,, the first respondent herein, the Zamindar of Talaprolu Estate, which adjoined the Agraharam addressed a letter to the Deputy Collector alleging that the holding which had been proclaimed for sale formed part of Ranganagudam village comprised in his estate and that the petitioner had no right to bring it to sale as part of his Singanagudam Agraharam. This letter was forwarded by the Deputy Collector to the selling officer, 'for information and necessary action'. No notice of this letter was given to the petitioner but on the date fixed for sale, the selling officer called upon the agent of the petitioner who had come there to attend the sale to answer the allegations in the letter sent by the first respondent. The agent filed a counter-statement alleging that the property sought to be sold was part of the petitioner's Agraharam, that it was in the possession and enjoyment of the judgment-debtor as a 'ryot' of the Agraharam village and that the claim of the first respondent was unfounded. The Officer took statements from the karnam and two ryots of Ranganagudem who supported the first respondent's claim, while the judgment-debtor and his brother filed statements supporting the petitioner's case. On these statements, the Revenue Inspector came to the conclusion that the land in question did not belong to the petitioner's village but formed part of the first respondent's Zamindari village Ranganagudam. In spite of this conclusion, he conducted the sale and knocked down the property to the second respondent who was the highest bidder, and submitted the sale records together with the record of his enquiry to the lower Court. That Court, however, set aside the sale on the ground that the selling officer having found that the land ordered to be sold was not part of the petitioner's village ought to have postponed the sale and submitted the records of his enquiry for orders of the Court and that the petitioner played a fraud on the Court by attempting to, bring to sale a holding which was no part of his village. It accordingly directed the refund of the purchase money to the second respondent. In passing this order, the Court purported to act under Order 21, Rule 90, Civil Procedure Code, read with Section 192 of the Madras Estates Land Act, though no application was made by the first respondent under that provision.

2. Learned Counsel for the petitioner has challenged the validity of this order mainly on the ground that the Court has no power to set aside the sale under Order 21, Rule 90, Civil Procedure Code, as that provision is not made applicable by Section 192 of the Madras Estates Land Act to sales in execution of decrees for rent passed under that Act. The respondent raised a preliminary objection to the maintainability of the revision petition. It was contended for him that Order 21, Rule 90 as well as Order 43, Rule 1(j) applies to proceedings under the Estates Land Act and that therefore the petitioner's remedy was to appeal from the order now sought to be revised.

3. The question whether Section 192 of the Madras Estates Land Act makes Order 21, Rules 90 and 92 applicable to sales in execution of decrees for rent passed under the former Act was decided in the negative by a Bench of this Court in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 and that decision is binding on me. It was, however, pointed out by learned Counsel for the first respondent that that case was decided before Section 192 of the Act was amended by Act VII of 1934 and that the reasoning based on the specific exclusion of Chapter 43 of the Civil Procedure Code of 1882 corresponding to Order 43, Rule 1 of the present Code from the provisions made applicable to proceedings under the Act could no longer apply. Jackson, J., observed at page 82:

Under the procedure, which, as now suggested, Section 192 is supposed to import, the sale is confirmed, and the aggrieved party has no appeal because Section 192 excludes Chapter (Order) XLIII, and no suit, because Order 21, Rule 92 precludes a suit.

4. This anomaly, it is urged, cannot occur after the amendment of Section 192 as it does not now specifically exclude the application of Order 43 to proceedings under the Estates Land Act. I do not consider that this makes any difference. The substantial reasoning on which the decision in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 is based is that Section 132 by making the provisions of Chapter VI of the Estates Land Act applicable to the execution by a Revenue Court of any decree for arrears of rent, provides a complete Code of Procedure, and Section 192 which applies the provisions of the Code of Civil Procedure to proceedings under the Act must be read subject to Section 132. In fact, the decision was followed and applied even after the amendment of Section 192 in Gopalakrishnayya v. Narasimha Rao : AIR1939Mad609 .

5. It follows that the preliminary objection should be overruled and the revision petition should be allowed. The petitioner will have his costs here and below to be paid by the first respondent.


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