CHAITAN PATGOSI MAHAPATRA Vs. KUNJA BEHARI PATNAIK

JUDGEMENT

(1.) The Deputy Collector passed a decree for over Rs. 100 for the rent of a tanki tenure. The learned Deputy Collector has upon a remand by this Court found that these tanki tenures are not transferable. The decree-holder put in an application for execution and soon after an application that some other property of the judgment-debtor might be sold: this other property, a kharidamafi tenure of the judgment-debtor was accordingly sold. Having come to know of the sale, he deposited the decretal amount with costs and the 5 per cent, payable to the auction-purchaser and asked for the cancelment of the sale: he also alleged fraud, irregularity and loss. The Deputy Collector held that Section 310A of the Civil Procedure Code, did not apply to sales under Act X of 1859 and there was no other law under which he could set aside the sale. On an appeal, the Collector upheld the decision of the Deputy Collector, and on motion to us, we at first issued the above rule, and being-desirous to know whether the property had been rightly sold in accordance with law, we asked for findings as to the nature of the tenure in respect of which arrears had been decreed and also the one sold. The findings have been sent and at the further hearing of the rule a preliminary objection has been taken that we have no jurisdiction to interfere with the orders of the Deputy Collector and Collector passed under Act X of 1854 and reliance is placed on the case of Huro Mohun Mookerjee v. Kedar Natk Doss (1886) 5 W.R. (Act X) 25 In this case L.S. Jackson and Glover JJ., held that the power of control and superintendence given by Section 15 of the Charter Act, was in reference to the General Appellate Jurisdiction of the Court and not to particular cases in which that jurisdiction is extraordinarily exercised or to a superintendence vested inthe Commissioner and the Board of Revenue by the express provisions of the Act. This view certainly supports the objection, but it has been subsequently departed from in a series of cases and virtually overruled. Very soon after the above case, was decided the case of Bhyrub Chunder Chunder v. Shama Soonderee Debea (1866) 6 W.R. (Act X), in which Norman J. said: "It is clear that the Collector s Court is a Court over which at the time of the passing of the Charter Act the Sudder Court possessed Appellate Jurisdiction and therefore it is clear that the 15th section of the Charter Act gives us a superintendence over such Courts for the purpose to which I have already alluded : " the purpose is set out in the earlier part of the judgment and is "to compel them to do any act which by law they should do, to command them to execute all powers with which they are vested and to restrain them from meddling when they have no jurisdiction." L.S. Jackson J. agreed. This was a case in which the Collector had entertained an appeal which lay to the District Judge. The same question came before the Full Bench in the next year in the case of Gobind Coomar Chowdhry v. Kisto Coomar Chowdhry (1867) 7 W.R. 520. In this case the Deputy Collector refused to entertain an application for restitution of an excess realized in execution of a decree subsequently modified. The Judge did not entertain an appeal as t he thought an appeal was incompetent as the matter was subsequent to decree. The High Court compelled the Deputy Collector to entertain the application. It may be noted that there is no provision for such restitution in Act X of 1859 and the order must have been made in accordance with the general Civil Procedure Code.

(2.) Then in the case of Deanutoollah v. Nowab Nazim Sidhee Nuzzer All Khan Uahadoor (1868) 10 W.R. 341, Sir Barnes Peacock C.J. and D.N. Mitter J. held that Act X of 1859 confers upon the Revenue Courts merely a limited jurisdiction and the High Court under its general power of control has the right to prevent them for exceeding that jurisdiction. In this case the attachment and sale order passed by a Collector in respect of properties of the judgment- debtor other than the tenure in arrear was set aside by the High Court as it was not shown that the Collector was satisfied that execution could not be obtained against the person and moveable property of the judgment-debtor.

(3.) In the case of Gudadhur Chatterjee v. Nund Lall Mookerjee (1869) 12 W.R. 406, the order of the Collector ordering execution against a person against whom the decree passed had been cancelled, was set aside by the High Court. In the case of Rooknee Roy v. Amrith Lall (1870) 14 W.R. 254, an appellate decree of the Collector was set aside as passed without jurisdiction. In the case of Sreemutty Nassir Jan v. Akbur Mozoomdar (1882) I.L.R. 9 Calc. 295 : L.R. 9 I.A. 174, the Collector was compelled to entertain an intervention which he had disallowed. The matter went up to the Privy Council in the case of Nilmoni Singh Deo v. Taranath Mukerjee (1882) I.L.R. 9 Calc. 295 : L.R. 9 I.A. 174. In that ease an order of the Collector transferring a decree for execution to another district was set aside by the High Court as passed without jurisdiction on the authority of Gobind Coomar Chowdhry v. Kisto Coomar Chowdhry (1867) 7 W.R. 520, and their Lordships of the. Judicial Committee agreed with the High Court as to its jurisdiction under Section 15 of the Charter Act.