ARJUN RAGHU NAROLE Vs. KRISHNAJI VENIMADAV VALIMBE

JUDGEMENT

(1.) A decree was sent to the Collector for execution under Section 68 of the Civil Procedure Code. The Collector appears to have put up the property of the judgment-debtor for sale, to have sold it, and given the purchaser a sale- certificate. Thereafter the present opponent claiming to be in possession in his own right, appears to have obstructed the auction-purchaser, and the Collector removed him, as he has power to do, uncier Rule 14(1) made under Section 70 of the Civil Procedure Code. Thereupon the opponent went to the Court which passed the decree and obtained from it an order under Rule 101 of Order xxi. Against this the present applicant the auction-purchaser has moved this Court in the exercise of its extraordinary jurisdiction to declare that the Subordinate Judge s order under Order xxi, Rule 101, was made in the circumstances stated, without jurisdiction. I think that the true answer to the question which arises here, a question which must frequently arise in similar cases, is that the execution entrusted to the Collector was completed and must have been completed before the Court which made the decree could properly be invited to make or certainly before it could properly have made any order under Rule 101. I agree that in principle there could not be two Courts executing the same decree at the same time, and this appears to me to have been the reason underlying Burkitt J. s decision in Muhammad Said Khan v. Payag Sahu (1894) I.L.R. 16 All. 228. But when we examine the rules framed under Section 70, and it is under those rules alone that the Collector exercises his powers, it will be seen that in the execution of the decree he is authorized to do a certain number of necessary acts, while on the other hand, his powers are much less extensive than those conferred upon an ordinary Court executing its own decree under O, xxi. So that while I do not demur to the principle I have stated, namely that after a decree has been transferred to a Collector the Court which passed that decree is for the time being functus officio for all purposes of execution, I also say that as soon as the Collector has exhausted all the power of execution conferred upon him by Rule 14 framed under Section 70, then any matters requiring to be done, and usually regarded as in execution such as those provided for in Rules 97 to 103 for example, of Order xxi, must be done by the Court which made the decree. Otherwise there might certainly arise situations in which parties have suffered wrong at the hands of a Collector tied down by the rules conferring upon him very restricted powers, and yet be entirely without redress. This can never have been the intention of the Legislature, and were authority needed, I might refer to a decision by Sir Lawrence Jenkins to which I myself was a party in Pita v. Chunilal (1906) 9 Bom. L.R. 15; I.L.R. 31 Bon. 207. There again, I think the reason is precisely and accurately stated by the learned Chief Justice and that reason will certainly cover the present case. We arc, therefore, of opinion that the order complained of was not ultra vires but made in the exercise of jurisdiction vested in the learned Judge who made it, and was very properly made. The rule must, therefore, be discharged with all costs. Hayward, J.

(2.) This application raises the question whether a Collector s order dispossessing a third party in execution under Rule 14 of the rules in force under Section 70 of the Civil Procedure Code can be called in question by that third party by application to the Court under Rules 100 and 101. of Order xxi of the Civil Procedure Code.

(3.) The powers of the Collector in execution must be looked for either in Schedule III or in the rules in force or framed under Section 70 of the Code. Where powers are conferred on the Collector the effect is to oust the jurisdiction to that extent of the Court as provided by Sub-section 2 of Section 70 of the Code. Now the Collector has been granted power to dispossess third parties in execution under Rule 95 of Order xxi of the Code by the inclusion of that provision in Rule 14 in force under Section 70 of the Code. But the Collector has not been granted power to hear the grievances of third parties after being so dispossessed in execution under Rules 100 and 101 of Order xxi of the Code. This power must, therefore, be deemed to have been left with the Court and not to have been taken away under Sub-section 2 of Section 70 of the Code. "If the power has by rules been vested in the Collector, then it is exercisable by him and not by the Court. If that power has not been conferred on him, then...the power must continue still to be exercisable by the Court," as was stated by Jenkins C J. in the case of Pita v. Chunilal (1906) 9 Bom. L.R. 15 I.L.R. 31 Bom. 207, 217.