NAGINDAS CHHOTALAL Vs. KUNVERSHA HORMUSJI

JUDGEMENT

(1.) THIS is an appeal against the order passed by the District Judge at Surut remanding Suit No.109 of 1942 for retrial on certain issues framed by him. Plaintiff No.1 and defendants Nos. 2 and 3 are the sons of Hormusji, plaintiff No.2 is Hormusji's widow and plaintiff No.3 is Hormusji's daughter. Defendant No.1 obtained a decree against them on a mortgage and sought to recover the decretal amount by sale of the mortgaged property in Darkhast No.437 of 1937 in execution of the decree, The plaintiffs and defendants Nos. 2 and 3 being agriculturists, the execution proceedings were transferred to the Collector for effecting the sale of the mortgaged property under Section 68 of the Civil Procedure Code. (In the course of those proceedings, the plaintiffs made an application that they were small holders as denned in the Bombay Small Holders Relief Act, 1938, and therefore the sale should be stayed under Section 3, Sub-section (1), of that Act. According to the plaintiffs, the sale was stayed for some time, but subsequently the property was sold by auction on April 30, 1941, and the sale was confirmed by the Collector on July 26, 1941. By that date the amount due under the mortgage decree to defendant No.1 was Rs. 3,358-8-6 and the property was sold by auction for Rs. 3,425 and purchased by the decree-holder defendant No.1 himself. The sale certificate was issued to him on February 10, 1942, and on March 31, 1942, the plaintiffs filed this suit to have the sale set aside on the ground of fraud by defendant No.1 and the improper undervaluation of the property which had caused loss to them. The fraud is riot specifically described in the plaint, but it is now alleged that the plaintiffs were held by the Collector to be small holders and although the sale was stayed for some time, defendant No.1 fraudulently got the property put to auction and purchased it. The trial Court held that the suit was barred under Order XXI, Rule 9q, Sub-rule (3), and dismissed it with costs. In appeal the learned District Judge held that the plaintiffs did not merely allege fraud or irregularity in publishing or conducting the sale within the meaning of Order XXI, Rule 90, of the Civil Procedure Code, but they contended that the Collector had no jurisdiction to hold the sale by reason of the Bombay Small Holders Belief Act, 1938, and that the plaintiffs could file a suit to challenge the validity of the sale on that ground. He therefore framed twelve issues, including those about fraud and irregularity in publishing or conducting the sale. I think the learned District Judge has gone beyond the reasons given by him for ordering the remand.

(2.) IT is argued on behalf of the plaintiffs that Order XXI, Rule 92, Sub-rule (3), has no application when an auction sale is confirmed by the Collector, since the Collector, though he may be acting judicially, is not a Court and his order is not appealable. There is no substance in this contention. When execution, proceedings are transferred to the Collector under Section 68 of the Civil Procedure Code, the rules framed by Government, which are quoted in paragraph 96 of Chap. II of the High Court Civil Manual, Vol. fl, p. 88, lay down the procedure to be followed by him. After the sale is held an' application to set aside the sale under Order XXI, Rule 89 or 90 or 91, of the Civil Procedure, if any, is to be made to the Collector within the time limited by law and the Collector, after accepting the application and the deposit, if any, has to forward them to the civil Court and inform the applicant accordingly. The civil Court has then to decide that application and pass an order either setting aside the sale or refusing to set aside the sale. Those orders are appealable under Order XLIII, Rule 1, Sub-rule (1) (j), of the Civil Procedure Code. After receiving the order of the Court, the Collector confirms the sale if it is not set aside by the Court. That power is conferred upon the Collector by Rule 15 (6) of the rules framed by Government. Then Order XXI, Rule 92 (6), Sub-rule (3) says : No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

(3.) MR. Shah for the plaintiffs requests that if a suit is not maintainable, he should be allowed to convert the plaint into an application under Order XXI, Rule 90, of the Civil Procedure Code. Section 47, sub-s. (2), of the Code says:- The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.