MAHALINGA NAICKER Vs. VELLAYA NAICKER ALIAS GURUSWAMI NAICKER

JUDGEMENT

(1.) Plaintiff is the appellant. He sued to set aside a sale held under the provisions of Chapter VI of the Estates Land Act, and for a permanent injunction restricting defendants from interfering with his enjoyment, on the following grounds: (1) that the sale was held without due notice to him, (2) that there was no publication, and (3) that the price was grossly inadequate. The first Court held on all these points in favour of the plaintiff, and passed a decree as prayed for. Defendants appealed, and the Appellate Court held that a Civil Court had no jurisdiction to entertain such a suit and allowed the appeal. That such a suit would lie has been held by a Full Bench of this Court in Rajah of Ramnad V/s. Venkatarama Aiyar (1915) I.L.R. 39M. 485 : 29 M.L.J. 172. The vakil for the respondents contended that this ruling would not apply because, there was an application to set aside the sale under Section 131 of the Act, and that O.21, Rule 92(1) of the Civil P. C. barred the suit. This rule runs as follows: Where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

(2.) I may here state that Section 89 is similar to Section 131 of the Estates Land Act, and it was represented that the applications put in by plaintiff under this section were dismissed because the proper sum was not deposited. Section 192 of the Estates Land Act relates to the application of the Civil P. C. to "suits, appeals and other proceedings under the Act" and it lays down that "subject to the other provisions, of this Act and subject to the following modifications and additions, the provisions of the Civil P. C. shall apply to all suits, appeals and other proceedings under this Act so far as they are not inconsistent therewith." And in Clause (1897) I.L.R. 20 A. 129 it is stated that Section 310-A (corresponding to Rule 89 of Order 21) shall not apply. Now if Rule 89 of Order 21 of the Civil P. C. does not apply to proceedings under the Estates Land Act, I fail to see how Rule 92(1) of Order 21 can be made applicable simply on the ground that Section 131 of the Estates Land Act is similar to Rule 89 of Order 21. As observed in the Full Bench case above referred to, the jurisdiction of Civil Courts is taken away only in cases referred to in Section 189 of the Estates Land Act, and it was not even suggested that there is anything in this section to bar the suit out of which this Second Appeal arises.

(3.) I would therefore allow the appeal and setting aside the decree of the Lower Appellate Court direct that that Court do re-hear the appeal. Appellant will get his costs in this Court and costs in the Lower Appellate Court will abide and follow the result. Appellant will get a refund of the Court-fee paid on the memorandum of appeal. Odgers, J.