CHHAKAURI KHAN Vs. PIR BAKHSH KHAN

JUDGEMENT

(1.) This appeal has been brought by Chhakauri Khan who purchased at a sale in execution of two Revenue Court decrees the house of the judgment-debtor defendant. One decree was for costs resulting in proceedings under Section 39 of Act No. III of 1901. The other was a decree passed under Act No. II of 1901, Section 159. Apparently the two decrees were consolidated and, one sale held on account of both decrees so consolidated.

(2.) The judgment-debtor applied to the Assistant Collector offering to pay in the sum decreed in accordance with the provisions of Section 310 A of the Code of Civil Procedure as made applicable to Rent Courts, The Assistant Collector of the second class rejected his application and there is no doubt that he did so wrongly. Chhakauri Khan then got a sale certificate in his favour and obtained format possession over the house on 5 November 1905.;

(3.) The judgment-debtor appealed to the Collector who set aside the order of the Court below and granted the judgment-debtor ten days further within which to pay the decree-money together with the penalty. The money was paid in within ten days, and the sale set aside. The present appellant then applied to the Board of Revenue for revision of the Collector's order and his application was dismissed. He then instituted the suit out of which this appeal has arisen. In it he asks that the decision of the Collector and that of the Board of Revenue above mentioned be set aside as being ultra vires and contrary to law and that a declaration may be given in his favour for maintenance of possession over the house purchased. The Court of first instance held that Section 310 A applied to the case, that the Assistant Collector had jurisdiction to entertain the application and although he decided it wrongly and in such a way as to result in a substantial injustice to the judgment- debtor no appeal lay from that order. He took the view that the orders of the Collector and the Board of Revenue were ultra vires, that the sale having been confirmed by the Assistant Collector, and his order being final, Chhakauri Khan was entitled to possession, The lower appellate Court took the view that the order of the Assistant Collector under Section 310 A was appealable and set-ting aside the decree of the Munsif remanded the case under Section 562 for trial on the merits.