MARTAND TRIMBAK GADRE Vs. DAYA APAJI PHATAK

JUDGEMENT

(1.) In this case the decree was transferred to the Collector for execution. Under Rule 91, (16) (1) at p. 105 of the Manual of Circulars regarding the powers of the Collector, the Collector can grant express permission to the holder of a decree, in execution of which property is sold, to bid for or purchase the property: Provided that the Collector or other officer aforesaid to whom an application for such permission may be made shall not grant such permission, unless the decree-holder inter alia agrees that if the decree-holder or any one on his behalf becomes the purchaser, the purchase money shall be paid to the Collector or other officer executing the decree.

(2.) The Collector, therefore, has no power to allow a decree-holder to set off the decretal amount against the purchase money. The question before us is whether the decree-holder having received from the Collector permission to bid, and having been declared to be the highest bidder, can apply to the Court for permission to set off the decretal amount. If the sale is held in execution under Order XXI of the Code, under Rule 72(1), "where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to the provisions of Section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly."

(3.) It would naturally follow from the fact that a decree-holder obtains permission to bid, that he should be entitled to set off the decretal amount against the purchase money, provided that there are no other attaching creditors entitled to rateable distribution under Section 73 of the Code, and it appears to me that power to give permission to set off was not granted to the Collector, because the Collector would not be in a position to know what other attachments there were against the property sold in execution, but I See no reason why a decree-holder after getting permission from the Collector to bid, should not apply to the Court for an order entitling him to a set-off. It would naturally follow from a permission to bid granted by the Court itself. We have been referred to a decision of a Bench of this Court in Srinivas v. Jagadevappa . In that case the defendant who had applied to execute a decree, and whose decree had been transferred to the Collector for execution, applied to the Court in the first place for leave to bid at the sale, and then for permission to set off the t price against the decretal debt. It was held that the Court had no power to entertain the application for leave to bid, nor could it permit a set-off. It is quite clear that the Court had no power, . once a decree had been transferred to the Collector for execution, to entertain an application by the decree- holder for leave to bid. But I do not think that the point that arises in this case was before the Court in that case, and although there was an expression of opinion on the part of the Court that an application to set off could not be entertained, that must be read in connection with the application which was then made which was primarily one for permission to bid. It is certainly unreasonable to suppose that a decree-holder, who has obtained permission to bid from the Collector, should not be able to obtain from the proper authority the right to set off, which is the natural consequence of having received permission to bid. The reason why he must apply to the Court is clear. The Court which transferred the decree for execution would be the Court which would know what other applications for attachment had been made and it would, therefore, be the only authority to know whether the decree-holder could set off the whole of the decretal amount against his purchase money, or what amount he should pay into Court in order that there might be rateable distribution in favour of himself and other attaching creditors. If the Court had not this authority to grant leave to set off after the decree has been transferred to the Collector for execution, it follows that a successful decree-holder at the sale would have to pay to the Collector the whole of the purchase money, and might then have to wait a very considerable time before he got back the money again to which he was entitled under his decree. In my opinion, therefore, this appeal should be allowed, and an order made giving the decree-holder permission to set off the decretal amount against the purchase money, as it is not suggested that there are any attaching creditors who have executed their decrees against the particular property which has been sold.