SHRINIWAS APPACHARYA JAHAGIRDAR Vs. JAGADEVAPPA KALLAPPA PATIL

JUDGEMENT

(1.) It is unnecessary in this case to express any final opinion as to whether a second appeal lies to this Court because even if no appeal lay against the order made by the First Class Subordinate Judge on the 25th of November 1915 it would be open to us to consider the question of jurisdiction, which arises in the case, under Section 115 of the Civil Procedure Code. We have, therefore, considered the question of jurisdiction on its merits.

(2.) In this case an order was made on the 15th November 1915 directing execution of the decree to be transferred to the Collector. Subsequently an application was made by the mortgagee-defendant for permission to bid at the auction and also for permission to set off the decretal amount against the sale price. The Court was of opinion that it had no power to grant any such permission after the execution was transferred to the Collector.

(3.) It is argued before us that even when the execution of the decree is transferred to the Collector, the Court has the power under Rule 72 of Order XXI to entertain such an application and to grant the necessary permission if a case for such permission is made out. It seems to me, however, that the operation of this rule in this case is excluded in virtue of Section 70, Sub-section (2) of the Code of Civil Procedure which provides that a power conferred by rules made under Sub-section (1) upon the Collector shall not be exercisable by the Court. In the present case we have Sub-clause 16 of Clause 91 at page 105 of the Manual of Civil Circulars which distinctly provides that the power conferred by Section 294 of the Code of Civil Procedure, (that is by Rule 72, Order XXI), may be exercised by the Collector subject to certain conditions; and one of the conditions is that the decree-holder must agree to pay the purchase money to the Collector or other officer executing the decree if he becomes the purchaser. This rule is in clear conflict with Rule 72, Order XXI, and as the power is specifically conferred upon the Collector subject to the condition which I have already mentioned, I feel clear that the civil Court has no power to exercise the discretion which is vested in it under Rule 72 after the execution of the decree is transferred to the Collector.