Shib Singh vs Mukat Singh and Others

John Edge, Kt., C.J. and Blennerhassett, J.—Shib Singh was the purchaser at an auction sale held by the Collector in execution of a decree, the execution of which had been transferred u/s 320 of the CPC to the Collector. The Collector acting u/s 312 passed an order setting aside the sale. Thereupon Shib Singh brought this suit to have the sale confirmed. The first Court dismissed the suit. The Court of First Appeal dismissed the appeal. Shib Singh has brought this second appeal.

We were pressed by Mr. Porter with the decision of this Court in Azimuddin v. Baldeo ILR All. 554, and he contended that we were bound by that decision to hold that the suit lay. There is no doubt that if the law which was applicable when that decision was passed remained unaltered until this suit was commenced, and further if it was a Civil Court which had nude the order setting aside the sale in this case, we should have been bound by the decision upon which Mr. Porter has relied. The case in ILR All. 554, is a decision of the Full Bench in which Mr. Justice Oldpield dissented. It is not for us to discuss that Full Bench decision. We may say, however, that the judgment of Mr. Justice Olufield in that case commends itself to our approval. That decision was followed by a Division Bench of this Court in Dandi Bibi v. Kalka ILR All. 602, which gave no reason for the decision except that the point had been decided by the Full Bench. However, these two cases to which we have referred were decided, the one upon Act No. X of 1877, and the other upon Act No. XIV of 1882 before it was amended by Act No. VII of 1888. Now before the amendment of Section 588, Clause (16), there was no appeal from an order passed u/s 312 setting aside a sale. Clause (16) was amended by Section 55 of Act No. VII of 1888, and a right of appeal was given from such an order. Further, in Act No. X of 1377, and Act No. XIV of 1882 before its amendment in 1888, Section 320 consisted of the first two paragraphs which still appear in it and of those only. By Act No. VII of 1888, Section 30, paragraphs 3, 4 and 5 were added to Section 320. The third and fourth paragraphs, which were two of the added paragraphs, clearly indicate in our opinion that, when a decree is transferred to the Collector for execution u/s 320, the Revenue Court becomes seised of the jurisdiction which temporarily is taken away during the execution of the decree from the Civil Court. By the third paragraph of Section 320, orders made by a Collector u/s 312 are subject to appeal to and revision by superior revenue authorities if the Local Government makes rules in that behalf. Failing such rules, there appears to be no appeal. It is not necessary for us to decide whether or not a purchaser is given a right of appeal from an order passed by a Collector u/s 312 of the Code setting aside a sale. The decree-holder and the judgment-debtor, or the person whose Immovable property has been sold, are by the rules which were made and are in force u/s 320 given a right of appeal from an order confirming or setting aside a sale of a Collector. It never could have been the intention of the Legislature that there should be an appeal proceeding in a Court of Revenue from an order of a Collector u/s 312 and a civil suit proceeding in a Civil Court raising the same question as to the propriety or validity of that order. The result might be that the Court of Revenue in appeal might take one view, and not impossibly the Civil Court might take another view. In our opinion where a jurisdiction is transferred from the Civil Court to the Collector to execute a decree, and where the law makes the Collector''s order either final or appealable to higher revenue authorities and not to the Civil Court, the intention of the Legislature is that the order of the Collector shall not be questioned either by appeal or suit in the Civil Court. We presume that if Act No. VII of 1888 had been passed before the two decisions to which we have referred, this Court might have taken a different view of the law from that expressed in those cases. The Full Bench decision in Madho Prasad v. Hansa Kuar ILR All. 314, supports the view which we have adopted. We dismiss this appeal with costs.