SRI BALUSU BUTCHI SARVARAYUDU, PROPRIETOR OF KAPILESWARAPURAM AND KASANAKURRU ESTATES Vs. POLISETTI VENKATARATNAM

JUDGEMENT

(1.) THE plaintiff in the suit out of which this civil miscellaneous appeal arises, contending that he had made the deposit of rent required of him by Section 15 of Act IV of 1938. applied to the Revenue Court to stay the sale of his holding. The application was dismissed and the land sold. He thereupon brought the present suit for an injunction to restrain the landholder from taking possession of the land he had purchased in Court auction. An objection was taken by the appellant that the remedy of the plaintiff lay by way of appeal; because the order passed was one under Section 47 of the Code of Civil Procedure and so a suit did not lie. That objection was upheld by the trial Court; but in appeal it was held that Section 47 did not apply and that the suit lay.

(2.) SOMEWHAT similar questions have come before this Court on many occasions, the leading case being Jagannatha Pillai v. Kathaperumal Pillai, I.L.R. (1902) Mad. 267. There, it was held that since the Madras Estates Land Act provided no remedy for an improper sale and parts A and B of the,|chedule did not exclude the common law right of a person to have recourse to a Civil Court when aggrieved, a suit lay. Jackson, J., further remarked that since the Madras Estates Land Act provided a special procedure for execution in Sections 111 to 131 of that Act, the procedure laid down for execution proceedings in the Code of Civil Procedure could not be applied. In Gopalakrishnayya v. Narasimha Rao, I.L.R. (1902) Mad. 267 Krishnaswami Aiyangar, J., followed Jagannatha Pillai v. Kathaperumal Pillai, I.L.R. (1902) Mad. 267. By that time Section 192, upon the present wording of which the learned Advocate for the appellant relies, had been amended. Formerly, Section 192 made applicable to proceedings under the Madras Estates Land Act only such provisions of the Code of Civil Procedure as were specifically mentioned, whereas under the present section all the provisions of the Code of Civil Procedure apply except such as the Government may from time to time notify. The effect of the amendment was not, however, considered by Krishnaswami Ayyangaf, J.; and it is possible that the matter with which he was dealing related to something that was done before the amendment came into force. In Suryanarayana v. Sri Rajah Sobhanadri Apparao Bahadur, it was argued that the effect of the amendment was to change the procedure in execution of revenue decrees. Patanjali Sastri, J., after referring to a passage from the judgment of Jackson, J., said:

(3.) THE appeal is dismissed with costs.