C ADIMOOLA MUDALIAR Vs. NCMANICKA MUDALIAR

JUDGEMENT

(1.) These petitions arise out of applications filed before the Deputy Collector under Section 131 of the Estates Land Act for setting aside the sales for arrears of rent. The sales were on the 13 of March, 1922. On the 6 of April an application was put in for the purpose of setting aside the sale on the ground of irregularity. The Deputy Collector, probably being under the impression that no application would lie to set aside the sale on the ground of irregularity, advised that the petition may, if so inclined, apply to set aside the sale under Section 131 of the Estates Land Act which corresponds to Order 21, Rule 89, C.P.C. An application was put in for that purpose and a sum of Rs. 150 was deposited at the time. The petitioner was asked to come on the 10 of April for the purpose of ascertaining the balance to be deposited. On the 10 of April, it appears from the record, that the petitioner appeared and wanted to know how much he was to pay. The Deputy Collector endorsed on his application " Find out how much he has to pay " and sent it to the office, and Rs. 15-8-0 was received on that day. Having paid Rs. 15-8-0 the Petitioner went away and did nothing further. On the 20 of April the purchaser who was himself the Izara-aar applied to the Court for payment of the money paid in by him as purchase-money and in his petition he states that he is informed that the judgment-debtor paid into Court the decree-amount with 5 per cent and poundage and applied for getting rid of the sale under Section 131 of the Estates Land Act, that he has no objection to the sale being set aside; and he applied for payment of the money to him. Apparently no notice was taken of this application and on the 2nd of June a notice was sent by Mr. Krishnamachariar, a Vakil of the High Court, to the Deputy Collector wherein the application made by his client on the 20 of April 1922 for payment of the money due to him was referred to. The notice proceeds as follows: Though they did so even without any formal notice of the petition by the other side for the purpose of expediting payment of the said large amount to them and, their request was made so early as 20 April last and a reminder was sent by my clients by registered post dated the 6 May and registered on the 9 Idem and received by the Head Clerk on the nth of the said month and though my clients subsequently went and requested the suit clerk to send the refund order by post, which he said would soon be done, nothing has been done as yet." After receipt of the application by the purchaser, the reminder referred to in the notice and the lawyer's notice, a notice was issued on the 15 of June by the Deputy Collector calling upon the petitioner to pay Rs. 138- 6-3. I find a calculation made by the Deputy Collector's office which shows that the arrears was Rs. -168-14-3 and the commission was Rs. 135 snaking up a total of Rs. 303-14-3, that Rs. 165-8-0 had already been paid and that Rs. 138-6-3 was the balance that he had to pay. On receiving information to pay, this amount was actually paid by the petitioner. Notice was issued by the Deputy Collector informing the parties that the petition for setting aside the sale would be disposed of. Both parties appeared and the Deputy Collector set aside the sale.

(2.) Objection was taken before the Deputy Collector that, as the amount required under Section 131 of the Estates Land Act was not paid within the time limited by the Act, namely, 30 days from the date of sale, the sale ought not to be set aside. The Deputy Collector set aside the sale on three grounds. He held that the non-payment of the proper sum within 30 days was due to the fact that, owing to want of records, a sum was asked to be paid which did not represent the full amount payable under Section 131. He states that the petitioner acted on the statement made by the Deputy Collector as to the amount payable and that, if there was a mistake, the mistake being that of the office, ought not to prejudice the petitioner. The Deputy Collector set aside the sale on the ground that the purchaser having agreed to the sale being set aside and to the deposit being paid over to him he is estopped from contending that the sale ought not to be set aside because of the payment being not in accordance with the section. The third ground which he sets out is that there were irregularities in the sale which rendered the sale invalid. He also refers to the contention raised that being an inam it could not be brought to sale before enfranchisement.

(3.) The petitions are filed under Section 115 C.P.C. and Section 107 of the Government of India Act, and before I can interfere it has to be shown that the Court exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. The contention of Mr. Ramachandra Iyer for the purchaser is that the amount which has to be paid being an amount which has to be arrived at merely by arithmetical calculation, the petitioner was fully competent to have known what the amount was when he himself states the amount of the sale in his petition and that, even assuming that there was some error in calculation or an error made in the Deputy Collector's office, it is not a ground for excusing the non-payment of the full amount required; secondly, that there is nothing on the record to show that the Deputy Collector fixed the amount that was payable or told him to pay a particular sum and that he was misled by such order; thirdly, that there can be no question of estoppel because the petition to refund the purchase-money proceeded on a statement that if the amount due and payable as required by the section had been paid, that amount ought to be paid over to the purchaser. He states that the Deputy Collector assumed a jurisdiction to set aside the sale on grounds which are not warranted by the very facts which he sets out and that, consequently, he has acted without jurisdiction by mis-directing himself upon the question of law. The contention for the respondent is that there is sufficient material on record to show that the petitioner before the Deputy Collector's Court was not aware of the exact amount payable, that he applied for information to the Deputy Collector, that the Deputy Collector, who might have refused information or assistance did render the assistance that was required and that the question therefore, as to whether the party was misled is a question of fact which was within the competence of the Deputy Collector to decide and, having decided it in favour of the applicant, there is no want of jurisdiction or irregularity in procedure. it is also contended that the question as to whether the purchaser is estopped or not is a question of fact which it was in the competence of the Deputy Collector to decide. Questions were also raised as to whether Section 131 of the Estates Land Act precludes an application to set aside a sale for irregularity. It was argued that having regard to Section 192 of the Act, which makes Section 311 of the C. P. Code inapplicable (owing to its not being included in the category of the sections enumerated), it was open to the Deputy Collector to go into the question of irregularity also. The question as to whether a sale could be set aside on the ground of irregularity under the Estates Land Act is not free from doubt, but I think it is unnecessary to decide that question in this application, because, if the sections of the Code are applicable, the present application, being only to set aside the sale under Section 131 of the Estates Land Act which corresponds to Section 310 (a) of the Civil Procedure Code, it is not competent to the Court to go into any question of irregularity in the sale. I do not, therefore, say anything further on this point.