Kalka vs Bandi Bibi

John Edge, Kt., C.J.—In this case the plaintiff was an auction-purchaser at a sale under an execution, and brought this action to obtain confirmation of this sale, the Collector having passed an order setting aside the sale. From that order no appeal was brought. The Courts below granted a decree in favour of the plaintiff. The defendant has appealed, and her points are: first, that the action cannot be maintained in a civil Court; secondly, that the price realized was inadequate. In support of the first contention the appellant has relied upon the Full Bench judgment in the case of Madho Prasad v. Hansa Kuar I. L. R. All. 314 and a judgment in the case of Jasoda v. Gulzari Lal (not reported) and the case of Dwarka Prasad v. Himmat Rai (not reported). The two latter cases were decided on the authority of the first. The first case only decided that an appeal from an order made by the Collector in execution of a decree did not lie to the civil Court. We have had the opportunity of consulting our brothers Straight and Tyrrell who were parties to the judgment in the Full Bench case. They confirm us in the view that it was not intended to be laid down there that an action like this would not lie. For my part I do not think that the Full Bench decided any such question. No such question was before the Full Bench for their consideration. Now the case of Azim-ud-din v. Baldeo I. L. R. All. 554 which came before the Full Bench of this Court, decided that such an action would lie in a case where execution had proceeded in the civil Court. Munshi Hanuman Prasad, on behalf of the appellant, has contended that the effect of the order of the local Government of 12th November 1883, Rule 19, which provides, that "all orders under Clause 13 passed by the Collector, shall be subject to appeal to the Commissioner of the Division, whose order shall be final," had the effect of taking away the right to maintain this action. Being of opinion that the cases cited by the Munshi do not apply, and being able to discover no difference in principle between this case and the ease of Azim-ud-din v. Baldeo ILR All. 554 to which I have referred, I am of opinion that the action does lie in the civil Court. As to the other point, whether the property was sold for an insufficient price, it lay on the defendant to show that there had been a material irregularity in publishing or conducting the sale. The findings of the Courts below are conclusive on that point. The appeal must be dismissed with costs.

Brodhurst, J.

I concur with the learned Chief Justice in dismissing the appeal with costs.