ZIBAL ISWARA Vs. MUKA

JUDGEMENT

(1.) THIS is an appeal under Section 47, Civil P.C., from an order passed by the Additional District Judge in Civil Appeal No. 12-B of 1938 arising out of execution proceedings. A decree obtained by the appellants against the respondents had been transferred for execution under Section 68, Civil P.C. The Collector ordered the sale of the respondents' malik makbuza fields to be held on 1st November 1937. On 9th October 1937 the judgment-debtors applied to the Civil Court for reduction of interest and making the decree payable by instalments under Section 11, C.P. Money-lenders Act. On that very date the Civil Court (Sub-Judge, second class, Bhandara) made an order in these terms: Applicants by Mr. Lakhnikar. Mr. Lakhnikar has filed an application for instalments under Money-lenders Act. Application be registered as a Miscellaneous Judicial case under Section 11, C.P. Money-lenders Act. Issue notices to the non-applicants decree-holders to show cause. Collector be informed to stay the proceedings until further orders. Case for 27th November 1937.

(2.) THIS order was not communicated by the execution mohurrir as he was in usual course of routine bound to do. The Collector held the sale on 1st November 1937 as advertised and the decree-holders became the purchasers. On 27th November 1937, the decree-holders appeared in the Civil Court and reported that the sale had been held in their favour. It was discovered that the order ordering stay of proceedings before the Collector had not been communicated. The Court warned the execution mohurrir for his lapse and directed instructions to be sent to the Collector that the sale should not be confirmed. For some mysterious reason even this was not brought to the notice of the Collector with the result that the sale was confirmed. Thereon the judgment-debtors made an application to the Civil Court for an order setting aside the sale as void in consequence of its order directing the proceedings before the Collector to be stayed. That Court held that, since rightly or wrongly the sale was held and confirmed, it was conclusive and that it had no jurisdiction to interfere with it. That order was reversed by the lower Appellate Court on the ground that the effect of the Civil Court's order dated 9th October 1937 staying the sale proceedings was to suspend the power of the Collector to execute the decree transferred to him irrespective of the fact that it was not communicated to him.

(3.) ON the first question, it may generally be conceded that the Civil Court has no jurisdiction to interfere with the proceedings before the Collector after it has transferred the decree to the Collector for execution under Section 68, Civil P.C. That is a proposition which requires no authority to confirm its validity in view of the plain terms of Section 70(2), Civil P.C. It was by virtue of this enactment that in Daulat Singh v. Jugal Klshore (1899) 22 All 108, Mathura Das v. Lachman Ram (1902) 24 All 239, Gulzari Lal v. Madho Ram (1904) 26 All 447, Shahzad Singh v. Hanuman Rai (1924) 11 AIR All 704, Krishna Das v. Ram Gopal Singh (1928) 15 AIR All 558, Shriniwas Appacharya v. Jagadevappa (1918) 5 AIR Bom 216 and Rudrappa Vlrappa v. Bashettappa Chenbasappa (1928) 15 AIR Bom 189 it was held that the transfer of the decree to the Collector under Section 68, Civil P.C, ousted the jurisdiction of the Civil Court in matters in respect of which power had been conferred on the Collector. The problem arising for decision in the present case is different, if one looks to the substance and not merely the form. Can it be said here that the Civil Court was seeking to exercise the powers which the law has conferred on the Collector to the exclusion of the Civil Court? The answer must be in the negative since the Civil Court manifestly never intended to usurp the powers of the Collector in respect of the execution proceedings. The judgment debtors' application under Section 11, C.P. Money-lenders Act, could lie only in the Civil Court which alone had the power to order the decree to be paid by instalments. This power was not and could not be withdrawn from the Civil Court and vested in the Collector by any rules made by the Local Government under Section 68, Civil P.C. The decree could be amended by the Civil Court alone as desired by the judgment debtors and if so amended the Collector's power would automatically come to an end since the decree which was transferred to the Collector would itself cease to exist.