KESHEO Vs. PANDURANG

JUDGEMENT

(1.) JACKSON , A.J.C. 1. In this case I have to deal with a claim to pre-emption under the Berar Land Revenue Code of 1896. Both the lower Courts have held, on the authority of Maidabi v. Tejabai [1908] 4 N.L.R. 188, that there is no right of pre-emption in the case of an auction sale by the Official Receiver in an insolvency case. In Maidabi v. Tejaba [1908] 4 N.L.R. 188, it is held that there is no right of pre-emption when the interest of a co-occupant in a survey number in Berar is sold by auction in pursuance of a mortgage decree for sale of the mortgaged property; but it does not follow that a sale by the Official Receiver stands on the same footing as that of a sale in execution of a decree. It has been held in Entazuddi Sheikh v. Ram Krishna Banik [1920] 24 C.W.N. 1072, that sales by the receiver are really sales by the owner and may be either by public auction or by private treaty; and that the procedure governing sales in execution of a decree under the Civil Procedure Code does not apply to them. I am not impressed by the reasons given in Maidabi v. Tejabai [1908] 4 N.L.R. 188, for holding that no right of pre-emption arises when the sale is held in execution of a decree. The real reason is given in the Privy Council decision in Sheobaran Singh v. Kulsum-un-nissa A.I.R. 1927 P.C. 113, where the following passage occurs: It was pointed out that a sale in execution of a decree transferred the property free from a claim of pre-emption. The reason is simple. The Civil Procedure Code arranging for sale under a decree mentions and deals with rights of pre-emption and gives those who hold them certain rights.

(2.) IT is argued, however, that this case must be decided with reference to the provisions of the Berar Land Revenue Code 1896, and that those provisions makes the Privy Council decision inapplicable to the present case. It is first pointed out that Section 205 only gives a right of pre-emption when the interest of a co-occupant in a survey number is transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration; and it is argued from this that the section cannot apply to an auction sale which is not to a specified person. This argument is based upon a misreading of the section, as the words " in favour of a specified person" can only refer to the case of relinquishment.

(3.) FINALLY it is argued that no due notice could be given because Section 206, Sub-section (1), requires the vendor to specify in the notice the price at which he is willing to sell and no notice can be specified in the case of an auction sale. This is one of the grounds put forward in Maidabi v. Tejabai [1908] 4 N.L.R. 188, for holding that there is no right of pre-emption, when property is sold in execution of a decree; but, as I have already stated, it does not appeal to me, and I consider in view of what is contained in Sheobaran Singh v. Kulsum-un-nissa A.I.R. 1927 P.C. 113 that it is not the real ground for the view stated. I see no reason to hold that that Privy Council decision does not apply to the present case.