GORDHANDAS RANCHHODDAS Vs. ISHVARBHAI CHHANALAL

JUDGEMENT

(1.) THIS is a second appeal from a decision of the learned Assistant Judge of Ahmedabad. The facts giving rise to this appeal, so far as a statement thereof is necessary for the present purpose, may be shortly stated. In execution of a money decree a house site with a partially completed building standing thereon was sold by the Court on August 11 1936. The highest bid of Rs. 4,525 was offered by the appellant Gordhandas. The sale was subject to a charge on the property in the sum of Rs. 2,500. That highest bid was accepted by the Court and the auction purchaser made the deposit of the entire sum forthwith. The confirmation of the sale was delayed owing to certain applications by another holder of a decree against the judgment-debtor and also by the latter to set aside the sale. While the proceedings under those applications were pending in or about June, 1937, owing to a violent storm and heavy rainfall the stability of the half completed building was endangered and the municipality insisted upon its being pulled down and actually ordered the removal of the entire structure. On that account the two floors and a partially constructed balcony at the top were demolished and the material was placed on the ground. In consequence on July 27, 1937, the auction purchaser Gordhandas applied to the Court for refund of the purchase money deposited by him in Court, and he maintained that the sale should be set aside inasmuch as the delivery of the property to him at the auction sale had become impossible by reason of the destruction of the building which he contemplated to buy at the auction by offering the highest bid. The learned Judge of the executing Court thought that although this was a case of hardship, the appellant had purchased that building in that incomplete state with his eyes open, and that the inherent powers of the Court could not be exercised in favour of the auction purchaser. The learned Assistant Judge, to whose Court an appeal was taken, held that the appeal was incompetent. But at the same time he observed that the allegation of hardship was not justified upon the facts; for, the charge subject to which the property was soldi had been paid off and was not known to the parties at the time of sale and that therefore the auction purchaser had really gained an advantage. He therefore confirmed the order appealed from. Against that order the auction purchaser has filed this second appeal.

(2.) MR. Shah, counsel for the respondents, has raised a preliminary objection to the maintainability of the appeal. He says that an order refusing to exercise jurisdiction under Section 151 of the Civil Procedure Code is not an appealable order. The order under Section 151 of the Civil Procedure Code is clearly not appealable, but according to the prevailing practice if the merits and the circumstances of the case justify, this Court would permit the appeal to be converted into a revision application and treat it as such. This the learned advocate for the appellant has asked me to do, and accordingly I have upon the merits decided to hear this appeal as a civil revisional application.

(3.) HAVING regard to the express provisions of Rule 92 of O. XXI making it obligatory on the Court to confirm the sale under certain circumstances stated, it can safely be said that the Court's jurisdiction to set it aside on any other ground not specified is, in my opinion, impliedly excluded. In Sridat v. Mohar Singh [1932] A.L.J.R. 392 the auction purchaser asked the Court to set aside a sale on the ground that there was an honest mistake that the amount for which the property was knocked down included the mortgage money also, although he was not misled1 by anything done or said by the sale officer. Sulaiman J., as he then was, observed that the express provisions contained in Rule92 precluded the Court from setting aside a sale on any ground other than that prescribed in the rule. It is well recognized that where the jurisdiction of a Court is expressly limited to the decision of particular questions, the decision of other questions must be regarded as impliedly removed from its jurisdiction. The Court in such a case cannot invoke its inherent powers to rectify what is in its opinion a supposed wrong [see Jethabhai Narsey v. Chapsey Cooverji (1909) I.L.R. 34 Bom. 467, s.c. 11 Bom. L. R. 1014; Gopal Dinkar v. Ganesh Narayn (1920) I.L.R. 45 Bom. 512 : S.C. 22 Bom. L.R. 1416.and Motibhai v. Ranchhodbhai. 4 (1934) 37 Bom. L.R. 241.] Here the Legislature has dealt with specifically the jurisdiction of the Court to interfere both on behalf of the judgment-debtor and on behalf of the auction purchaser in certain limited circumstances. The purchaser in an auction sale under Rule 91 has a right to apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. And even that right of the auction purchaser under O. XXI, Rule 91, is limited to the case where the judgment-debtor has absolutely no saleable interest in the property. Where that interest is different from the one described in the proclamation or very much" more limited, no relief can be granted to him unless it is possible to say that there is nothing left to be sold [see Sonaram Dass v. Mohiram Dass (1900) I.L.R. 28 Cal. 235. Shanto Chandar Mukerji V. Nain Sukh (1901) I.L.R. 23 All. 355 and Muhammad Rahanmat-ul-lah v. Bachcho (1905) I.L.R. 27 All. 537] There is no other ground specified in Rule 91, and the Court's jurisdiction is therefore necessarily restricted, and, in my opinion, it could not be enlarged unless the requirements of justice demand it.