Ganpatrao vs Baburao and another

This is an appeal on behalf of the plaintiff against the judgment and decree of the Nazim, Sadar Adalut, Aurangabad, dated 23rd Azur 1358F., by which he reversed the judgment of the Additional District Judge, Mominabad, decreeing the suit for a declaration that the plaintiff was entitled to levy execution of the whole of the decretal amount without the deductions ordered by the Collector.

In order to appreciate the points involved in the appeal a few facts, which are not in dispute, may shortly be stated. The appellant had obtained in the year 1344F., a decree against the father of the respondent for Rs. 3743-1-0 from the Court of the Additional District Judge, Aurangabad, and in execution thereof he attached certain lands belonging to the judgment-debtor which were situated in a jagir. For purposes of effecting their sale, the decree was transferred to the Collector of Bid under S. 365, Hyderebad Civil P. C., corresponding to S. 68, Indian Civil P. C.

The Collector in his turn transferred the decree to the Tahsildar. Inasmuch as the attached lands were situated in the jagir, the Tahsildar of Mominabad remitted the decree to the Tehsildar of Deogaon Kothi Jagir, who by means of public auction sold the attached lands and knocked them down to the appellant, because he was the highest bidder. Then the judgment-debtor raised an objection before the Collector that the sale was void, for it was conducted and held by a person, who had no authority in law to do so. This objection was upheld and the sale was set aside.

The appellant went in appeal to the superior authority, but failed. Consequently, the judgment-debtor was reinstated in the possession of the lands, and before a fresh sale could be ordered, the judgment-debtor put in an application, requesting the Collector to take an account of the profits derived by the appellant while he was in possession of the lands as an auction purchaser. After holding an inquiry, the Collector on speculative basis found that the appellant has derived benefits amounting to Rs. 2505-4-0. Deducting this amount from the decretal deist, he ordered the judgment-debtor to pay Rs. 1103/- and odd within a certain time or in default a fresh sale would be ordered to satisfy the amount found due. Aggrieved by that order, the appellant appealed to the Subedar, who by his order of 15th Thir 1354F, upheld the Collector''s order.

Alleging the aforementioned facts, the appellant brought the present suit against the sons or the judgment-debtor, who had in the meantime died, for a declaration that the Collector had no power in law to reduce the amount awarded by the decree and that he was entitled to execute the decree for the full decretal debt. The respondents admitted all the material allegations which had given rise to the present litigation, but pleaded limitation and raised the objection that the suit was not maintainable in view of the provisions of sub-s. (1) of S. 47, Indian Civil P. C.

They further demurred that the sale by the Jagirdar was rightly set aside on the additional ground that the sale, if upheld, would contravene the provisions of the Hyderabad Prevention of the Land Alienation Act. Lastly it was urged that the profits derived by the appellant during the period he was in possession were in the nature of payments ex curia and the Collector had power to hold the decree to have been satisfied to that extent.

The trial Judge overruled the plea of limitation and after examining the provisions of S. 367, Hyderabad Civil P. C. corresponding to para 1 of Sch. 3 of the Indian Code came to the conclusion that the order of the Collector recording satisfaction of the decree to the extent of Rs. 2505/- was ultra vires and could be challenged by a regular suit, which according to him, did not fall within the prohibition contained in sub-s. (1) of S. 261. Consequently, he decreed the suit subject to the condition that in realising amount of the decree, the Collector would have regard to S. 17, Hyderabad Prevention of Agricultural Land Alienation Act.

The lower appellate Judge has taken a contrary view and dismissed the suit. The grounds which had led it to hold adversely to the appellant were that the Collector in effecting the sale was acting as executing court, that consequently, every question relating to the execution, discharge or satisfaction of the decree, including the question of restitution, assessment of mesne profits and its deduction from the decretal amount would fall within the ambit of S. 261, and that no fresh suit challenging the propriety of the orders of the Collector would lie.

In the alternative, it held that it the controversy between the parties were to be governed by S. 644, Hyderabad Civil P. C., corresponding to S. 151, Civil P. Code, the comedy lay by way of appeal as provided by Circular No. 16 of 1330F., and not by a regular suit.

We have heard the learned Advocates appearing on behalf of the parties. After giving careful consideration to their respective contentions, we have come to the conclusion that the trial Judge was right in decreeing the suit except that it could not change the mode of execution by directing the Collector to act under S. 17, Prevention of Agricultural Land Alienation Act.

It was within the powers of the framers of the Code to let money decrees be satisfied by sales of land assessed to revenue payable to the Government or the Jagirdar, through the civil Courts. But in order to avoid complications that may arise as regards the revenue and other cognate questions, it was deemed expedient to provide that the sales of such lands should be effected through the Collector. The powers of the Collector in that respect were circumscribed by providing that where the execution of a decree has been transferred to the Collector under S. 365, he may

(a) proceed as the Court would proceed when sale of immovable property is postponed in order to enable the judgment-debtor to raise the amount of the decree; or

(b) raise the amount of the decree by letting in perpetuity (patta) or for a term or by mortgaging whole or any part of the property ordered to be sold; or

(c) sell the property ordered to be sold or so much thereof as may be necessary.

These provisions by themselves do not show that the Collector for the limited purpose for which the decree is transferred to him would be a transferee Court within the meaning of S. 251, Hyderabad Civil P. C., corresponding to S. 39 of the Indian Code.

The Hyderabad Code did not contain any provisions corresponding to those enacted in S. 71 of the Indian Code, which provided that in executing a decree transferred to the Collector under S. 68, the Collector shall be deemed to be acting judicially. Even under the Indian Code, it has never been held that the Collector because he acts judicially would be deemed to be a Court. Even that Section has never been interpreted to invest the Collector with the powers of a Court.

In - Bhagwan Das Marwari and Others Vs. Suraj Prasad Singh and Others ), it has been held that the Collector exercises his powers under the authority of the local Government and he is in no way subordinate to the civil Courts. The C Hector is not a Court executing the decree. He is nowhere mentioned as a Court and the Legislature, therefore, found it necessary to say specifically that when a Collector exercises his jurisdiction in the matter of execution of decrees, he should be deemed to be acting judicially. If the Collector bad been a Court it would not have been necessary to say he should be deemed to be acting judicially.

A reference to sub-s. (2) of S. 366, Hyderabad Civil P. C., corresponding to sub-s. (2) of S. 70. Indian Civil P. C., would also show that the power conferred by rules under sub-s. (1) of S. 366 upon the Collector or any Gazetted Officer subordinate to the Collector or upon any appellate or revisional authority would not be exercisable by the civil Court or by any Court in exercise of any appellate or revisional jurisdiction.

It was because or these provisions that it had been held in the case of -- ''Vithal Rao v. Qurban Husain'', 18 Dec LR 362 (B), relied upon by the lower appellate Court, that matters within the exclusive jurisdiction of the Collector could nut be challenged either in the executing Court or in the Court exercising appellate or revisional jurisdiction. But the authority either by its own force or by method of rationalisation cannot be deemed to countenance the proposition, as has been held by the learned Nazim, that all the orders of the Collector with respect to sale fell within the ambit of S. 261, Hyderabad Civil P. C., and therefore, no separate suit could lie.

This authority has been considered and distinguished in -- ''Gangabai v. Moti Chand'', 33 Dec LR 376 (C), and it has been held therein that a separate suit lies to set aside the sale held by the Collector. We arc not unaware that a contrary proposition has been laid clown in -- ''Kadaji v. Tulsabai'', 33 Dec LR 288 (D), by the learned Judges who decided the case of ''Vithal Rao v. Qurban Husain (B).

But it is a short judgment and gives no reason for holding that a suit could not be brought to set aside a sale held by a Jagirdar. To justify that view, the learned Judges have referred to S. 360 which corresponds to R. 92 of O. 21, Indian Civil P. C. No doubt, sub-s. (3) of that section lays down that no suit to set aside an order made under that section shall be brought by a person against whom such order confirming or setting aside the sale is made.

But the learned Judges overlooked the point that the section in terms applies to Courts and not to Collector and we have not been shown any law making the provision of this section applicable ''mutatis mutandis'' to the Collector.

From the above discussion, it would appear that there was no legal bar to the maintainability of the suit out of which this appeal has arisen. It 1 is admitted on all hands that the deductions made by the Collector from the total amount for the satisfaction of which the sale was to be held was in the nature of an order which would otherwise be covered by the provisions of S. 249, Hyderabad Civil P. C. analogous to R. 2 of O. 21, Indian Civil P. C.

But S. 367 or rules made under S. 366 do not confer any such power upon the Collector. Therefore, the trial Judge was perfectly right in holding the order of the Collector or that of the Subedar confirming the Collector''s order was ultra vires and; could be challenged by a separate suit. However, he was wrong in prescribing a particular mode of execution inconsistent with that ordered by the Court executing the decree.

The result is that the appeal succeeds and is hereby allowed with costs of this Court and of the Courts below. The judgment and decree of the Nazim, Sadar Adalut, Aurangabad, is set aside and the judgment and decree of the Additional District Judge, Mominabad is restored with the modification as stated above.