MALEGAON BUDRUK CO-OPERATIVE CREDIT SOCIETY Vs. GANGADHAR NARAYAN CHAVRE

JUDGEMENT

(1.) THIS is a second appeal from the judgment of the District Judge at Poona who reversed the decision of the lower Court in civil suit No.429 of 1933.

(2.) THE relevant facts are these : On November 13, 1921, an award was made, and to execute that award a darkhast was filed in 1924. In execution, the property in this suit was sold by the Jagirdar's Court at Malegaon and a sale certificate issued on November 10, 1924. On May 27, 1925, an application was made to the Jagirdar's Court to set aside this sale. An application was then made to the District Judge at Poona to transfer the hearing of that application, and it appears from the record that affidavits1 were filed in support of the application. On November 6, 1925, the District Judge ordered the application to be transferred to the First Class Subordinate Judge at Poona. That Subordinate Judge set aside the sale on June 19, 1926. THE plaintiff applied for a review of the order, but the same was rejected on the ground that there could be no review of an order made on a review. THE plaintiff thereafter filed this suit in 1932 in the Jagirdar's Court at Male-gaon to obtain possession. Under the orders of the District Judge the suit was transferred to the Second Class Subordinate Judge's Court at Baramati. THE defence was that there was no sale as the certificate of sale was cancelled and the plaintiff was therefore not entitled to possession. THE plaintiff's re-joinder was that the order of June 19, 1926, made by the First Class Subordinate Judge at Poona was without jurisdiction, and under Section 44 of the Indian Evidence Act he was entitled to prove it. THE trial Court held that the order was without jurisdiction and granted a decree in favour of the plaintiff. THE lower appellate Court took a contrary view and dismissed the suit as barred by the law of res judicata.

(3.) THE line of reasoning adopted by the trial Court is based on an erroneous construction of Section 4 of the said Regulation. ' Section 4 gives authority to the Jagirdar to execute his own decrees. That does not mean that the sale of land of an agriculturist must be done by him, and no other person has aright to do so. THE Civil Procedure Codes of 1859 and 1882, in terms, applied to proceedings before the Jagirdar under this Regulation. In the Civil Procedure Code of 1908 the express1 affirmative provision is not incorporated, but the negative wording of Section 4 of the Code shows that the provisions of the Civil Procedure Code apply, unless there is found in the Regulation special procedure laid down on a particular point. Regulation XIII lays down no special procedure at all. THErefore the normal rule found in the Civil Procedure Code, under which sales of property of agriculturists are required to be transferred to the Collector, applies also to the Jagirdar's decrees. I therefore agree with the conclusion of the lower appellate Court that the order of the District Judgle to transfer the application for review was not without jurisdiction, and if so, the decision setting aside the sale is binding on the plaintiff. He cannot in a substantive suit re-agitate the validity of the order which is made with jurisdiction.