RAMKRISHNA BALWANT SHINDIKAR Vs. SATWA KONDO LAHANU

JUDGEMENT

(1.) THE only point for decision in this pre eruption But is the claim that the pre-emptor at the time at which the sale sought to be sot aside was made was not a co-occupant and therefore had no right to pre-empt. The decision of both the Courts below was in favour of the pre-emptor, and the person preempted has preferred this second appeal.

(2.) THE appellant's purchase took place on the 11th of August 1941. The pre-emptor bought the share of the field by virtue of which he claims as a co-occupant to pre-empt at an auction sale which originated in insolvency proceedings. At that time Section 68, Civil P.C. was in force in these provinces and by virtue of Section 60, Provincial Insolvency Act, the sale in insolvency proceedings was held by the Collector. The sale took place on 27th April 1941. It was not confirmed until the 11th December in that year, and it is now contended that as the sale did not be. come absolute until after the date of the appellant's purchase the pre-emptor had no right of suit.

(3.) IT is urged before me that Section 65 applies only in the case of sales arising in the execution of a decree and can have no application to sales, whether auction sales or no, which arise in any other manner and it is also contended that there is no similar provision in the Provincial Insolvency Act. No authority has been cited in respect of this proposition. Under Section 60 of the Insolvency Act, when a declaration has been made under Section 68, Civil P.C, and is in force sales of the insolvent's immovable property are held by the Collector under the powers conferred by the relevant paragraphs of the third Schedule to the Code. It is not disputed that in cases sent to the Collector under Section 68 of the Code for the execution of decrees, Section 65, Civil PC, has application. When the powers conferred by the Code are used in the matter of sales arising otherwise than in execution of a decree it appears to me that all the incidents of the Civil Procedure Code apply. In Manakchand v. Ibrahim A.I.R. (8) 1921 Nag. 25. Kotval A.J C. held that the provisions of the first Schedule to the Code would apply. Further when the Insolvency Act directs that in certain circumstances sales are to be held by the Collector in the manner in which the Collector carries out such sales in the execution of decrees it follows, in my opinion, that the vesting of the property in the purchaser should be deemed to antedate to the time of the sales as much as it does in the case of a Collector executing a decree.