Vasudevan Moosad vs Ittirarichan Nair

Sir John Wallis Kt., C.J.—It is strange that in none of the cases in this Court dealing with the ottidar''s right of pre-emption in Malabar, Cheriya Krishnan v. Vishnu ILR (1882) Mad. 198, Vasudevan v. Kesavan ILR (1884) Mad. 309, Kanharakutti v. Uthotti ILR (1890) Mad. 490 at p. 491, Ammotti Haji v. Kunhayen Kutti ILR (1892) Mad. 480, Kanaran Nair v. Raman Nambiar (1893) 4 M.L.J. 46 or Mammali v. Kunhipakki Haji ILR (1915) Mad. 67 has the question been considered, how far such a right can be exercised in the case of Court and revenue sales consistently with the provisions of the statute law regulating such sales. Both in Bengal and in Northern India, where cases of pre-emption are much more numerous than they are here, it appears to be well settled that it cannot in the absence of statutory provision being made for its exercise, as in the case of some revenue sales in the United Provinces. In Baij Nath v. Sital Singh ILR (1891) All 224 at p. 227, Mahmood, J., after reviewing the authorities, states:

It may therefore be taken as a rule of law settled by a long and uniform course of decision that a compulsory sale, such as a sale in execution of a decree or a sale under an authoritative order of the revenue authorities for arrears of Government revenue, does not render pre-emption enforceable, whether such right is claimed under Muhammadan Law, the terms of Wajib-ul-arz, or on the ground of local custom or private contract; but that such compulsory sales being the creation of statute law do furnish occasion for the exercise of the pre-emptive right where such right is provided subject to the rules and restrictions prescribed by those legislative enactments themselves.

And he goes on to refer to the provisions of Section 310 of the Code of 1882 and other local statutory provisions. The other learned Judges did not differ from Mahmood, J., on this point, but on the question whether such special statutory provisions had been made in the particular case, and the law as laid down by him was accepted as settled in Kanhai Lal v. Kalka Prasad ILR (1905) All 670 at p. 677.

On a careful consideration of the question I agree with the law as laid down by Mahmood. J. I find it quite impossible to reconcile the statutory provisions of the CPC as to sale in execution of decrees with the ottidar''s right of preemption as now claimed. Section 60 of the Code makes immoveable property belonging to the judgment-debtor liable to attachment and sale in execution of a decree, and Section 65 provides that, where property has been sold in execution of a decree and the sale has become absolute, it is to vest in the purchaser. Under Order 21, Rule 92, it becomes absolute where no application is made under Rules 89, 90 or 91 of the Code of Civil Procedure, 1908, or where such application is made and disallowed. The rules in question do not provide for the exercise of a right of pre-emption.

There is a very limited recognition of the right of pre-emption in Rule 88, and if any further recognition had been intended, it would have been expressly provided. Having regard to the course of the decisions and the importance of the right of preemption in Northern India, I can only infer that the omission to make such provision was deliberate. In Manchester Ship Canal Company v. Manchester Race Course Company (1901) L.R. 2 Ch. 37 it was contended on the one side and not denied on the other that a right of pre-emption was quite incompatible with, a sale by auction.

In these circumstances we are bound, in my opinion, even at this late stage to uphold the objection taken and to answer the questions in the negative.