BATCHA CHINNA VENKATRAYUDU Vs. MAHARAJA OF PITHAPURAM

JUDGEMENT

(1.) THIS is an application to revise the order of the Revenue Divisional Officer of Cocanada dismissing the claim petition of the petitioner. The Divisional Officer held that Order 21, Rule 58, C.P.C., does not apply to execution proceedings under the Estates Land Act. Under Section 192 the provisions of the Civil P. C. are made applicable excepting a few to proceedings under the Estates Land Act, and there is no express provision which exempts Order 21 from applying to proceedings in execution of rent decrees. In the absence of specific provisions to the effect that a claim petition is not to be entertained by a Revenue Court I am not prepared to hold that an application under Order 21, Rule 58 cannot be made to the Revenue Court. It is not contended for the respondent that the rent decree in this case is in the nature of a mortgage decree. No doubt a claim petition is not competent when a mortgage decree is being executed.

(2.) THE petitioner had a mortgage right over the holding before the passing of the Estates Land Act, and any right acquired before the passing of the Estates Land Act in the holding is saved by Section 125 of the Act. THE petitioner filed a suit in 1907 on two mortgages and obtained a decree before the passing of the Act, and he therefore had the mortgagee's right on the date of the application over the property which was sought to be put up for sale. It is suggested on behalf of the respondent that the petitioner became the owner of the equity of redemption before the decree in favour of the respondent in 1919 and therefore he being the owner of the holding the landlord was entitled to bring it to sale. That question would depend on the question whether the petitioner became the owner by purchase in Court and as that matter has not been investigated, it is not possible to express any opinion on the point. I therefore set aside the order of the Divisional Officer and direct him to restore the claim petition to file and dispose of it according to law. Costs of this application to abide the result.