RATAN LAL AND 5 ORS Vs. KALI DAS

JUDGEMENT

(1.) These are two connected Civil Revisions arising out of an order dated the 9th of February, 1951 passed by the District Judge, Allahabad in two revenue appeals setting aside the sale in favour of the decree-holder. The facts are these. Two decrees for profits were obtained from the court of the Revenue Officer Muzaffarnagar. The decrees were transferred to Allahabad for execution. The judgment-debtor's one-fourth share in bungalow No. 3 on the Edmons:one Road was in due course attached. Notices were issued to the judgment-debtor to his address in village Babari in district Muzaffarnagar but it remained unserved as he had temporarily left the village due to plague. Service was accordingly effected by publication in "the Bharat" and in the "Sri Vijay." The share in the house was put up for auction in July 1945, The auction was held on the 21st July, when the highest bid of Rs. 7,800/ - was made by one of the decree-holders. The Tahsildar who conducted the sale instead of taking cash deposit of one-fourth of the bid from the auction-purchaser took a sum of Rs. 1300/ - only, presumably allowing for the decretal amount which exceeded Rs. 650/ -. The papers were put up before the S.D.O. Chail on 26th of July, 1945 and he passed orders to the effect that the Tahsildar should immediately realise the balance of one-fourth of the bid. This money namely Rs. 650/ - was deposited on August 21, 1945. On August 31, 194.% the S.D.O "confirmed" the sale and said 'hat the balance of three-fourth of the purchase money may be realiased. The balance was deposited on the 3rd of September, 1945. The judgment-debtor did not apply for setting aside the sale until December, 1945 when he said that he first came to know of the execution proceedings. The executing court refused to set aside the sale. Two appeals were preferred which were heard and disposed of by the Addl. District Judge of Allahabad on the 1 th July 1947, who considered that certain malarial questions had not been properly appraised. The appeals were allowed and the objection was remanded to the executing court for decision on merits after giving the parties an opportunity to lead evidence on the issues framed and in the light of the observations made by he Addl District Judge. The objection was again rejected by the executing court. The judgment-debtor preferred two miscellaneous revenue appeals and this time the matter was heard and disposed of by the District Judge of Allahabad on the 9th of February, 1951, and he set aside the sale holding that it was void. It is against this order that these two revisions have been preferred. In deciding the two earlier appeals the learned Addl. District Judge was of the opinion that there was some force in the decree-holder's contention that the order of the 31st of August 1945 passed by S.D.O. Chail should retreated as an order of acceptance or declaration contemplated in Rule 84 of Order 21 of the Code of Civil Procedure. In the later appeals the district Judge held that if the deposit is to be created as not within time it would be the necessary to consider the question of fraud as extending the period of limitation to the date of knowledge when the matter came up before the District Judge in two subsequent appeals. It was suggested on behalf of the decree-holder that the question whether the deposit was made within time or not had already been determined by the Addl. District Judge and consequently it could not be reagitated. The District Judge was, however, of the view that on reading the judgment of the Addl. District Judge it was apparent that the Addl. District Judge gave no definite findings but merely made certain observations and remitted some issues to the court below to be decided in the light of those observations and that under the circumstances it was open to the District Judge to consider the matter afresh without being bound by his predecessor's observations. A copy of order of the Addl. District Judge passed in the earlier appeals has been laid before me by Mr. Ghatak.

(2.) Mr. Ghatak has argued, relying upon a decision of a Full Bench of this Court in Chauli v. Meghoo,1945 AndhWR 244 that the District Judge was bound by the decision of the Addl. District Judge on the point in question and he had become functus officio so far as that question was concerned after the order of remand. In my judgment the District Judge was quite entitled to say that he will give the parties further opportunity to agitate a matter which in the proper sense had not been decided after full consideration, the more so because the District Judge thought that there were special reasons existing in the case as to why he should reconsider the previous opinion expressed by the Addl. District Judge. The court was in no sense functus officio because the question of the confirmation of the sale was still before it; and in order to arrive at the question as to whether the sale in the circumstances of the case was fit to be confirmed or not, it could take note of the totality of circumstances bearing upon that question. The Full Bench decision relied upon by Mr. Ghatak, in my opinion, goes to help the opposite party.

(3.) It is obvious in the present case that when on 26-7-1915 the S.D.O. ordered the tahsildar to realise the balance of the one-quarter of the bid immediately he must be deemed to have been acting under Order 21 Rule 84 which runs as folloWS: