CHAUDHARY DHANNALAL Vs. MT. UDDI BAI

JUDGEMENT

(1.) . 1. In execution of a decree in Civil Suit No. 18/23 of 1927-29 passed in favour of Brijlal against Mt. Bhago Bai and Mt. Uddi Bai for Rs. 5,560, 8 annas share of Mt. Bhago Bai in mauza Kalmeshra was ordered to be sold and the decree was transmitted to the Collector. The Collector sold the share on 23rd July 1932 and it was purchased by Chaudhary Dhannalal. On 11th August 1932 Mt. Uddi Bai made an application Under Section 151, C.P. Land Revenue Act, claiming the right of preemption and deposited Rs. 5,000 for payment to the decree-holder, who was described as Ramlal, son of Bhagwan Patel. On 30th August 1932 the auction-purchaser Dhannalal made an objection in writing to the assertion of claim for pre-emption made by Mt. Uddi Bai. The Collector referred the application for pre-emption filed by Mt. Uddi Bai and the objection lodged by Chaudhary Dhannalal to the civil Court for decision. The Collector however did not transfer the sum of Rs. 5,000 which had been deposited with him by Mt. Uddi Bai. The civil Court considered various objections raised by Dhannalal and allowed the claim for pre-emption made by Mt. Uddi Bai. Dhannalal, the auction-purchaser, has moved this Court in revision.

(2.) ON behalf of the applicant the grounds which were urged in the lower Court are again pressed here. It is argued that Mt. Uddi Bai being one of the judgment-debtors could not claim the right of pre-emption. There is nothing in law to preclude a co-judgment-debtor from claiming such a right if such a party happens to be a cosharer. The right given to a cosharer by Section 151, C.P. Land Revenue Act, cannot be lost because the cosharer also happens to be a co-judgment-debtor with one whose share is sold in execution. The learned counsel for the applicant was not able to show any specific provision of law, authority or principle in support of his contention. It must be noticed here that the execution before the Collector was in fact directed against Mt. Bhago Bai alone. It cannot therefore strictly be said that Mt. Uddi Bai was a judgment-debtor in so far as the Collector's proceedings were concerned.

(3.) NEXT it is vehemently urged that the claim to pre-empt Mt. Bhago Bai's share ought to have been made in the civil Court and not as was done before the Collector. The validity of the entire proceeding is assailed on two grounds: (1) that the claim which was presented before the Collector, but was not so done in the civil Court, could not be dealt with by the civil Court, as it was never presented to it; (2) that when the matter came before the civil Court on 30th August 1932 the claim had beer time-barred. It is true that there is no specific provision as to the authority to whom the claim for pre-emption Under Section 151, C.P. Land Revenue Act should be presented. In Govinda v. Murlidhar 1928 Nag 48 the Full Bench apparently regarded with approval the presentation of such a claim before the Collector. On a strictly technical view, the applicant's contention that since the civil Court alone has the jurisdiction to decide the dispute relating to any claim made Under Section 151, C.P. Land Revenue Act it must be presented to the civil Court, has great force. But I am unable to see the validity of the argument that a claim presented to the Collector is not a claim presented to the civil Court inasmuch as the Collector exercises all the powers of a civil Court for the purpose of selling the property in execution. The claim for pre-emption arises, to use the actual words of Section 151 "in the course of a sale." As the sale is held by the Collector it would be in fitness of things if the claim in respect of pre-emption is presented in the first instance to the Collector.