Ram Dass and Another vs Bhagwat Narain Singh and Others

Rowland, J.—One Bhagwat Narain Singh, opposite party, was the proprietor of an estate which had been for some years under the management under the Chota Nagpur Encumbered Estates Act (6 of 1876); it was subsequently released. After the release of the estate a money decree was obtained against him and it was sought to bring to sale certain of his landed property in execution. The sale took place, but before it was confirmed Bhagwat Narain Singh applied to have it set aside on two main grounds. First, irregularity in publishing and conducting the sale and inadequacy of price. Secondly, that the properties were not liable to be attached and sold in execution of a money decree by reason of the provisions of the Encumbered Estates Act. This application was presented against both the decree-holders and the auction-purchaser, the latter being a stranger to the suit. The Munsif held that there was no irregularity in publishing and conducting the sale and no inadequacy of price established and was of opinion that there was nothing in the Chota Nagpur Encumbered Estates Act operating as a bar to the sale of the property in execution. On appeal the Judicial Commissioner agreed with the Munsif in rejecting the first ground, but on the latter point he held that Section 12-A. of the Act read with Section 60, Civil P.C., prevented a property released u/s 12 from being sold without the sanction of the Commissioner. Accordingly he set aside the three sales. Hence these three applications.

It has been argued, firstly, that no appeal lay to the Judicial Commissioner from the finding of the Munsif that Section 12-A did not bar the sale because this is not a matter decided u/s 47 which would be appealable as a decree and on general grounds. It is said that a proceeding between the judgment-debtor and auction-purchaser after the sale is not a proceeding between the parties to the suit or their representatives and is not a proceeding relating to the execution of a decree and therefore an order in such a matter is not appealable u/s 47. The order is made appealable under Order 21, Rule 92, Civil P.C., and Order 43, Rule 1, and the appeal only lies on the grounds specified in Order 21, Rule 90. In support of this contention reference is made to the Full Bench decision of the Patna High Court, Hakim Abdul Gani v. Raja Ram [1916] 1 Pat. L.J. 232 , and to a recent decision in Ramkumar Agarwala Vs. Ramcharan Hanuman Sonar and Another, . But those were cases under Order 21, Rules 95 and 96, and not Order 21, Rule 92, and are therefore not in point. So far as Order 21, Rule 92, is concerned cases under the corresponding provisions of the former CPC were considered in Prosunno Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 633 and in Ganapathy Mudaliar v. Krishnamachariar AIR 1917 P.C. 121, by the Judicial Committee of the Privy Council. These decisions related to applications for setting aside a sale. It was held that they ought to be decided u/s 244 of the old Code corresponding to Section 47 of the Code of 1908, and they were matters to be decided by the Court which passed the decree, and no suit would lie regarding these matters. No authority has been cited before me to show that it has ever been held that a decision, under Order 21, Rule 92 is not a decision u/s 47, Civil P.C., and is not appealable as such. I am of opinion therefore that I am bound to follow the Privy Council decisions and to hold that the Judicial Commissioner acted with jurisdiction in entertaining the appeal as an appeal from a decision u/s 47, Civil P.C. This is sufficient to dispose of the case as a matter of civil revision.

There is however power as held in Dulhin Sona Kuer v. Jamil Ahmad [1918] 48 I.C. 779 to treat an appeal as a petition in revision and to treat a petition in revision as an appeal if necessary for the ends of justice, and the learned advocate for the petitioner has asked me to enter into the question of law as to whether the Judicial Commissioner was, right in holding that Section 12-A, Chota Nagpur Encumbered Estates Act, read with Section 60, Civil P.C., was a bar to the sale of the property without sanction of the Commissioner. No authority has been cited which is directly in point. It has been held in Balmakund Sahay and Others Vs. Bhagwat Narayan Singh, that when the proprietor of an estate which has been released from management u/s 12 of the Act excutes a mortgage bond, the bond, though not enforceable as a mortgage, is valid as a money debt, but the decision does not touch the question how the holder of such a money decree shall realize the money when he seeks to do so by execution. The words of Section 12-A, Chota Nagpur Encumbered Estates Act, do not expressly refer, to proceedings in execution of decree: they say that the holder of such property shall not be competent, without the sanction of the Commissioner, to alienate his immovable property, or any part there of, in any way, or to create any charge thereon extending beyond his lifetime, and it provides that any alienation and charge made on the property in contravention of the sanction shall be void. It has been argued that a provision restraining alienation is effective only to the extent of restraining voluntary alienation and will not prevent the property being taken in execution of a decree by Court; that if it had been intended to prevent the property being so taken specific provision would have been made in the statute. The learned Judicial Commissioner has pointed out that no direct authority is available, but relies on Basangowda Virupaxgowda Vs. Irgowdati Kallangowda, . Here the Court was construing a contract embodied in a compromise petition, the terms of which included restraint on voluntary alienation. The Court held that it was effective and that it operated to prevent the property being taken in execution of a money decree. The Court read the provision along with Section 60, Civil P.C., and regarded the property as a property over which the judgment-debtor had no disposing power. The decision followed a previous case of the same High Court, Diwali v. Apaji Ganesh [1886] 10 Bom. 312. In the circumstances I am by no means satisfied that the Judicial Commissioner committed any error of law in deciding the case as he has done. It may be pointed out further that the petition of revision No. 13 of 1930 was presented after the expiry of the term of limitation for an appeal. The result is that the applications are dismissed with costs. I allow one consolidated hearing fee of five gold mohurs in these three cases.