DATTATRAYA MELGIRIGOWDA PATIL Vs. SIDLINGAPPA ISHWARAPPA BULLA

JUDGEMENT

(1.) The appellants in the two cases filed Miscellaneous Application Nos. 18 and 19 of 1957 in the Court of the Civil Judge, Senior Division, Bharwar, under Order XXI Rule 90 of the Code of the Civil Procedure, praying for setting aside the auction sale held by the Mamlatdar on 22-11-1957 in execution of a decree in Special Darkhast No. 172 of 1935 transferred to the Collector for sale of certain lands attached in the execution proceedings. The petitioners alleged that there were several illegalities and material irregularities in the conduct of the sale and that as a consequence thereof, they (petitioners) had suffered substantial loss. The decree-holder resisted the applications by denying the alleged illegalities and irregularities and questioned the competency of the executing Court to entertain the petitions for setting aside the sale held by the Mamlatdar. In support of his contention the decree-holder relied upon the decision of this Court in Veerabhadrappa Saagappa v. Sakhalchand, (1959) 37 Mys LJ 129. The learned Civil Judge took the view that the decision clearly supported the decree-holder and dismissed the applications on 3-3-1959 observing that the only remedy available to the petitioners was to institute a suit for setting aside the sale.

(2.) The petitioners have preferred these appeals challenging the correctness of the view taken by the executing Court. Mr. Datar appearing for the appellants, submitted that the decision of this Court in 37 Mys LJ 129 was not applicable to the facts of this case and that even if it were held to be applicable, it required reconsideration. When these appeals came up for hearing before a single Judge of this High Court, his Lordship directed the records to be placed before the Chief Justice for necessary orders, as he thought it desirable in view of the contentions taken up by the appellants, that the appeals should be heard by a Division Bench. That is how these two appeals have come up for hearing before this Bench.

(3.) So the main question that arises for consideration in these two appeals is whether the sale of agricultural lands held by the Collector or by his subordinate, in execution of a decree transferred to the Collector, can be challenged by an application under Order XXI Rule 90 of the Code of Civil Procedure made to a Civil Court? Order XXI Rule 90 the Code of Civil Procedure lays down that :