John Beaumont, Kt. , C. J. -
(1.) THESE are three applications which raise the same question of law. Civil Reference No.14 of 1934 is a reference by the District Judge of East Khandesh under Order XLVI, Rule 1, Civil Procedure Code; Civil Reference No.16 of 1934 is a reference by the Subordinate Judge made through the District Judge of Ahmednagar also under Order XLVI, Rule 1; and Civil Revision Application No.277 of 1934 is an application in revision against the judgment of the First Class Subordinate Judge of Jalgaon. The question which arises in all the cases is whether when execution proceedings have been transferred to the Collector for sale of immoveable properties and the judgment-debtor is a minor, power to the decree-holder to bid can be given either by the Collector or by the Court. The question seems to have given rise to a considerable difference of opinion, and there is no authority directly on the point. But the question lies within a narrow compass.
(2.) UNDER Order XXI, Rule 72, it is provided that no holder of a decree in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property. That rule clearly implies that the Court has power to give permission, in all cases of sale in execution, to the decree-holder to bid, and that power would clearly exist whether the judgment-debtor was a minor or not. The Court can always make an order against, or give consent on behalf of, a minor who is a party in a suit before it, and properly represented.
Then the next provisions to look at are Section 68 and the following sections of the Civil Procedure Code. Section 68 provides that the Local Government may declare as therein provided that in any local area the execution of decrees in cases in which a Court has ordered any immoveable property to be sold shall be transferred to the Collector. Section 69 applies the provisions in the third Schedule to cases in which the execution of a decree has been transferred to the Collector. Then Section 70 (7) provides that the Local Government may make rules consistent with the aforesaid provisions- (a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court; (b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector; (c) is not relevant. Sub-clause (2) provides that a power conferred by rules made under Sub-section (1) upon the Collector or any gazetted subordinate of the Collector or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court. The scheme of that section seems to me to be that where the execution of a decree for the sale of immoveable property is transferred to the Collector, the Local Government may make rules regulating such execution and may confer upon the Collector all or any of the powers which the Court would have possessed in such execution if it had not been transferred, and where powers have been transferred to the Collector, those powers cannot be exercised by the Court. That is to say there cannot be two conflicting authorities exercising the same powers. But the section gives no authority to the Local Government to prevent the Court from exercising a power which is not transferred to the Collector. The authority extends to determining whether a power is to be exercised by the Court, or by the Collector, but not to the destruction of a power.
Then the next matter to look at is the code of rules issued by the Local Government under Section 70, Civil Procedure Code. They are contained in the sub-rules of rule 91 of the Manual of Civil Circulars in Chapter II dealing with "execution of Decrees", and the material rules are sub-rules (11) and (15 ). Sub-rule (11) provides that no holder of a decree in execution of which property is sold shall, without the express permission of the Collector or other officer aforesaid being a gazetted officer, bid for or purchase the property. That rule taken by itself would seem to transfer to the Collector the power of granting leave to the decree-holder to bid in all cases in which the Court would possess such power under Order XXI, Rule 72, if the execution had not been transferred to the Collector. One must, however, read Sub-rule (11) with Sub-rule (15 ). Sub-rule (15) is headed "powers of Executing officer" and it confers upon Collectors and gazetted officers subordinate to a Collector, to whom a decree is transferred under Rule 2 (i), the power specified in Sub-rule (1) of Rule 72 of Order XXI of the first Schedule to the Civil Procedure Code, 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 satisfies him that the application is made in good faith and that the judgment-debtor is not a minor. The rest of the rule is not relevant.
(3.) NOW the argument on behalf of the respondents is that what is transferred to the Collector by sub-rules (11) and (15) is the power to consent to the decree-holder purchasing in every execution transferred to the Collector, and that such transfer prevents the Court from exercising the power by virtue of Sub-section (2) of Section 70 of the Civil Procedure Code, notwithstanding a limitation on the Collector's power, where the judgment-debtor is a minor. No doubt the actual wording of the rule does give some scope for that argument. But we have to read the sections and rules to which I have referred together, and see what the scheme of the legislature is. If we adopt the construction of sub-rules (11) and (15) to which I have referred, then it follows that where the judgment-debtor is a minor nobody can grant a consent to the decree-holder to purchase. The Collector cannot do it because he is expressly forbidden under Sub-rule (15), and the Courts cannot do it because all their powers in the matter have been transferred to the Collector. It would be a misfortune if the Collector is debarred from selling to a decree-holder who is prepared to make a satisfactory offer in every case in which the judgment-debtor is a minor. The other construction contended for is that what is transferred to the Collector is the power to consent to the decree-holder purchasing in all cases in which the judgment-debtor is not a minor, but that in cases in which the judgment-debtor is a minor, power to consent is not transferred to the Collector. I think that the latter construction is the right -one to put upon the rule. As I have already pointed out Section 70 of the Code does not enable the local Government to make rules destroying any power which is vested in the Court; all that it can do is to transfer such powers. In my opinion in so far as either Sub-rule (11) or (15) operates to prevent the Court from exercising a power which is not transferred to the Collector, the rule is ultra vires. But I think that the rules, on their true construction, have not that effect, and that the Government has not purported to transfer to the Collector the power of consenting to the decree-holder purchasing in. those cases in which the judgment-debtor is a minor.
It has been argued that to hold that the civil Court retains any power in respect of an execution which has been transferred to the Collector will occasion serious inconvenience. I am unable to appreciate that argument. There is no doubt that when execution of a decree has been transferred to the Collector, the Collector is the person who is to carry out the execution and to decide in what way the sale is to be effected. If the Court gives power to the execution creditor to purchase where the judgment-debtor is a minor, the result of that permission will be to extend, and not to limit, the discretion of the Collector in carrying out the sale. He will have power in a proper case to sell to the execution creditor, notwithstanding the minority of the-judgment-debtor. I need hardly say that the fact that the Court gives permission to the execution creditor to bid does not bind the Collector to accept an offer from the execution creditor.;