VENKATRAMAN KRISHNA BHATTA Vs. MAHABLESHWAR NARAYAN HEGDE

JUDGEMENT

(1.) A decree was passed against the petitioners by the Kumta Court and was transferred to the Honavar Court. On September 10, 1924, the judgment-debtors right, title and interest were put up for sale by the Mamlatdar and were purchased by the opponent, who paid twenty- five per cent deposit, but failed to pay the balance. On September 10, 1925, the petitioners- judgment-debtors applied to the Kumta Court to set aside that sale. That application was rejected, and a resale was held by the Mamlatdar of Honavar on December 10, 1925, which resulted in a deficiency of the price realised at the first sale by the opponent. The Mamlatdar sent the papers to the Collector, who returned them to the Subordinate Judge. The judgment- debtors applied in 1927, under Order XXI, Rule 71, of the Civil P. C., to recover the deficiency from the opponent defaulting purchaser of the first sale.

(2.) Two main objections were taken in the trial Court by the opponent purchaser. Firstly, that there was misdescription of the property in the proclamation of the first sale inasmuch as that proclamation did not clearly state that the interest of the judgment debtors was one-third and he was thereby misled. Secondly, the application lay to the Collector and not to the Court. The trial Court rejected both the contentions and allowed the application of the judgment-debtors to recover the deficiency from the purchaser. In appeal, the learned District Judge agreed with the trial Court on the first point but differed on the point of jurisdiction, holding that the application lay to the Collector and not to the civil Court. He, therefore, set aside the order of the trial Court and dismissed the application. The judgment-debtors apply in revision.

(3.) It is argued for the judgment-debtors that power under Order XXI, Rule 71, Civil Procedure Code, was not expressly conferred on the Collector by any rules made by the local Government under Secs.68 to 70 of the Civil P. C., and the civil Court, therefore, had jurisdiction, particularly after the Collector had returned all the papers of execution to the Court. It is contended for the opponent-purchaser that under the wording of Rule 71, the omission to state that the judgment-debtor's interest was confined to one-third was a material irregularity which misled him and entitled him to refuse to complete the amount. Other grounds are also urged, such as that the certificate was not obtained before the present application.