TUHI RAM Vs. IZZAT ALI

JUDGEMENT

(1.) The matters which have led to this appeal are shortly as follows: One Multan Singh obtained a decree for sale on a mortgage made by the defendants, and in execution of that decree had the property put up for sale. Part of the property was non-ancestral and this portion was sold by the Civil Court. The remainder being ancestral, the sale of it was transferred to the Collector. On the 20 of September 1904, the Collector sold this portion to the plaintiff for a sum of Rs. 25,000. On the 5 of October 1904, Izzat Ali, one of the co-owners of the property, filed an objection to the sale alleging material irregularities in its conduct and consequent loss of a substantial nature, and praying that the sale should be set aside under Rule 17 (XII). On the 19 October following one of the defendants, Abdul Hai, also a co-owner, applied to the Collector under Rule 17 (XIIIA) to have the sale set aside, depositing at the same time in Court a sum equal to 5 per cent. of the purchase money and also the amount of the decree. His Application was rejected by the Collector on the 11 of November 1904, on the ground, so far as we understand the order, that there was pending an application by Izzat Ali to have the sale set aside on the ground of material irregularity in the conduct of it. The Collector seems to have held that Abdul Hai, one of the owners of the property, could not apply under Rule 17, (XIII A) so long as, there was pending an application on the part of another co-owner under Rule 17 (XII). In his order the Collector says: "It has been urged that he (i.e., Abdul Hai) is only a mortgagor under the second mortgage represented by the amount of Rs. 2,234-8-0 and that Izzat Ali is a mortgagor under the first mortgage also represented by the amount of Rs. 24,632; that they are therefore different persons. I am unable to accept this contention. They are both judgment-debtors and originally joint defendants in the suit, and I hold that Abdul Hai is not entitled to make the application under Section 310A unless the application under Section 311 is withdrawn." He therefore, as the application of Izzat Ali had not been withdrawn, rejected the application of Abdul Hai. We do not profess to understand exactly the meaning of the language used by the Collector, but we take it that he refused the application of Abdul Hai on the ground that he alone was not a person who could apply under Rule 17 (XIIIA). We may point out that by oversight he cited in his order Section 310A and Section 311 of the Civil P. C. instead of Rule 17 (XII) and 17 (XIIIA) of the Rules of Government passed under Section 320.

(2.) An appeal was preferred to the Commissioner of the Meerut Division, with the result that, allowing the appeal, he set aside the order confirming the sale. In consequence of this order the present suit was instituted.

(3.) The Rules to which we have referred are Rules framed by the Local Government under Section 820 of the Civil P. C. for regulating the sale of ancestral lands by the Collector. Rule 17 (XIIIA) corresponds with Section 310A of the Code. The Court below dismissed the plaintiffs suit and hence this appeal.