ZIPRU KRISHNA Vs. PANNALAL BAHIRUDAS

JUDGEMENT

(1.) THESE are three applications which raise the same question of law. Civil Reference No.14 of 1934 is a reference by the District Judge of East Khandesh under Order XLVI, Rule 1, Civil Procedure Code; Civil Reference No.16 of 1934 is a reference by the Subordinate Judge made through the District Judge of Ahmednagar also under Order XLVI, Rule 1; and Civil Revision Application No.277 of 1934 is an application in revision against the judgment of the First Class Subordinate Judge of Jalgaon. The question which arises in all the cases is whether when execution proceedings have been transferred to the Collector for sale of immoveable properties and the judgment-debtor is a minor, power to the decree-holder to bid can be given either by the Collector or by the Court. The question seems to have given rise to a considerable difference of opinion, and there is no authority directly on the point. But the question lies within a narrow compass.

(2.) UNDER Order XXI, Rule 72, it is provided that no holder of a decree in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property. That rule clearly implies that the Court has power to give permission, in all cases of sale in execution, to the decree-holder to bid, and that power would clearly exist whether the judgment-debtor was a minor or not. The Court can always make an order against, or give consent on behalf of, a minor who is a party in a suit before it, and properly represented.

(3.) NOW the argument on behalf of the respondents is that what is transferred to the Collector by sub-rules (11) and (15) is the power to consent to the decree-holder purchasing in every execution transferred to the Collector, and that such transfer prevents the Court from exercising the power by virtue of Sub-section (2) of Section 70 of the Civil Procedure Code, notwithstanding a limitation on the Collector's power, where the judgment-debtor is a minor. No doubt the actual wording of the rule does give some scope for that argument. But we have to read the sections and rules to which I have referred together, and see what the scheme of the legislature is. If we adopt the construction of sub-rules (11) and (15) to which I have referred, then it follows that where the judgment-debtor is a minor nobody can grant a consent to the decree-holder to purchase. The Collector cannot do it because he is expressly forbidden under Sub-rule (15), and the Courts cannot do it because all their powers in the matter have been transferred to the Collector. It would be a misfortune if the Collector is debarred from selling to a decree-holder who is prepared to make a satisfactory offer in every case in which the judgment-debtor is a minor. The other construction contended for is that what is transferred to the Collector is the power to consent to the decree-holder purchasing in all cases in which the judgment-debtor is not a minor, but that in cases in which the judgment-debtor is a minor, power to consent is not transferred to the Collector. I think that the latter construction is the right -one to put upon the rule. As I have already pointed out Section 70 of the Code does not enable the local Government to make rules destroying any power which is vested in the Court; all that it can do is to transfer such powers. In my opinion in so far as either Sub-rule (11) or (15) operates to prevent the Court from exercising a power which is not transferred to the Collector, the rule is ultra vires. But I think that the rules, on their true construction, have not that effect, and that the Government has not purported to transfer to the Collector the power of consenting to the decree-holder purchasing in. those cases in which the judgment-debtor is a minor.