ZIPRU KRISHNA Vs. PANNALAL BAHIRUDAS

JUDGEMENT

(1.) These are three applications which raise the same question of law. Civil Reference No. 14 of 1934 is a reference by the District Judge of East Khandesh under Order XLVI, Rule 1, Civil Procedure Code; Civil Reference No. 16 of 1934 is a reference by the Subordinate Judge made through the District Judge of Ahmednagar also under Order XLVI, Rule 1; and Civil Revision Application No. 277 of 1934 is an application in revision against the judgment of the First Class Subordinate Judge of Jalgaon. The question which arises in all the cases is whether when execution proceedings have been transferred to the Collector for sale of immoveable properties and the judgment-debtor is a minor, power to the decree-holder to bid can be given either by the Collector or by the Court. The question seems to have given rise to a considerable difference of opinion, and there is no authority directly on the point. But the question lies within a narrow compass.

(2.) Under Order XXI, Rule 72, it is provided that no holder of a decree in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property. That rule clearly implies that the Court has power to give permission, in all cases of sale in execution, to the decree-holder to bid, and that power would clearly exist whether the judgment-debtor was a minor or not. The Court can always make an order against, or give consent on behalf of, a minor who is a party in a suit before it, and properly represented.

(3.) Then the next provisions to look at are Section 68 and the following sections of the Civil Procedure Code. Section 68 provides that the Local Government may declare as therein provided that in any local area the execution of decrees in cases in which a Court has ordered any immoveable property to be sold shall be transferred to the Collector. Section 69 applies the provisions in the third Schedule to cases in which the execution of a decree has been transferred to the Collector. Then Section 70(7) provides that the Local Government may make rules consistent with the aforesaid provisions-(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court; (b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector; (c) is not relevant. Sub-clause (2) provides that a power conferred by rules made under Sub-section (1) upon the Collector or any gazetted subordinate of the Collector or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court. The scheme of that section seems to me to be that where the execution of a decree for the sale of immoveable property is transferred to the Collector, the Local Government may make rules regulating such execution and may confer upon the Collector all or any of the powers which the Court would have possessed in such execution if it had not been transferred, and where powers have been transferred to the Collector, those powers cannot be exercised by the Court. That is to say there cannot be two conflicting authorities exercising the same powers. But the section gives no authority to the Local Government to prevent the Court from exercising a power which is not transferred to the Collector. The authority extends to determining whether a power is to be exercised by the Court, or by the Collector, but not to the destruction of a power.