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1936 DIGILAW 327 (ALL)

Sheobaran Singh v. Ranbir Prasad

1936-11-28

BOMFORD, DARLING

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JUDGMENT Darling S.M. 1. This order governs applications for revision Nos. 17 and 18. 2. An order passed by an Assistant Collector acting as a Collector u/s 5 of the Regulation of Sales Act, 1934, is in question. The decree-holder had accepted the option allowed to him u/s 4(a) agreeing to take a transfer of agricultural land in full satisfaction of his decree the order passed under Section, 5 the transfer of the land to the decree holder is dated 22nd August, 1934 The judgment-debtor promptly lodged an application u/s 4 of the Encumbered Estates Act: this was accepted by the Collector, who passed an order u/s 6 of the same Act on the 2nd September, 1935. On behalf of the judgment-debtor it is pleased that the effect of this order was, u/s 7 of the Encumbered Estates Act, to stay all proceedings pending under the Regulation of Sales Act. On the 21st October, 1935, an application by the judgment-debtor was brought on the record of the Assistant Collector acting as Collector in the case pending under the Regulation of Sales Act: in this application it was stated that an application had been made u/s 4 of the Encumbered Estates Act and had been accepted by the Collector u/s 6. Subsequently on the 18th March, 1936, the said Assistant Collector passed an order for the formal preparation of the sale-deed in respect of the property transferred u/s 4(a) by virtue of the order passed on the 22nd August, 1935, u/s 5. 3. This judgment-debtor and his legal advisers seem to have had no clear ideas of the remedy available. An appeal was lodged before the Commissioner of Agra: no Act was quoted in the heading of the petition of appeal, which referred to the case as the sale of ancestral property: but a copy of the order of the Assistant Collector acting as Collector, passed on the 22nd August, 1935, under Sections of the Regulation of Sales Act, was attached to the petition of appeal. As a matter of fact no such appeal lies to the Commissioner under the Regulation of Sales Act: appeals against the decision of the Collector in the matter of valuation of property u/s 3 lie to the Board of Revenue: otherwise there is no provision under this Act for appeal either the Board of Revenue or the commissioner. As a matter of fact no such appeal lies to the Commissioner under the Regulation of Sales Act: appeals against the decision of the Collector in the matter of valuation of property u/s 3 lie to the Board of Revenue: otherwise there is no provision under this Act for appeal either the Board of Revenue or the commissioner. In a brief order of twines, dated 8th January, 1936, the appeal was dismissed as time-barred. 4. The next step taken by the judgment-debtor was to come to the Board of Revenue he lodged two appeals against the order of the Assistant Collector acting as a Collector, dated the 18th March, 1936 for the preparation of a sale deed under Rule 8A, by which effect was given to the order of transfer passed on the 22nd August, 1935, u/s 5 of the Regulation of Sales Act. All though the proceedings in question were all under the Regulation of Sales Act, the appeal was lodged u/s 45 of the Encumbered Estates Act -no doubt because no appeal lay under the Regulation of Sales Act. By an elaborate order, dated the 29th July, 1936, these appeals were dismissed by my predecessor. 5. Simultaneously with the presentation of these appeals two applications in revision were also presented against the Commissioner's appellate order dated the 8th January, 1936, and against the original order of the Assistant Collector acting as a Collector passed on the 22nd August, 1935, for the transfer of the property u/s 5 of the Regulation of Sales Act. In the final paragraph of his appellate order dated the 29th July, 1936, my predecessor directed that this order would govern these two applications in revision, which were accordingly rejected. Now the judgment-debtor returns with an application for review of this order. By a detailed order dated the 4th September, 1936, my predecessor admitted the application; his colleague, the late Junior Member, agreed that the application should be argued in Court: it has been argued to-day at some length. 6. In his order dated the 4th September, 1936, my predecessor states that the two applications for revision were so much interlinked with the two appeals that he failed to deal specifically with some of the points raised in revision. The principal point is whether the Regulation of Sales Act, and the rules made thereunder, abrogates Chapter XL of the Revenue Manual. The principal point is whether the Regulation of Sales Act, and the rules made thereunder, abrogates Chapter XL of the Revenue Manual. Subsequently in another appeal from the Rohilkhand Division, No. 5 of 1935-36 Ram Raja Singh v. Kunwar Jagpal Singh 1937 A.W.R. 104, district Bareilly, my predecessor held definitely that the Regulation of Sales Act does not abrogate the rules in Chapter XL of the Revenue Manual. In this judgment dated the 25th September, 1936, my predecessor ruled that the transfer of property to a decree-holder u/s 5 of the Regulation of Sales Act is tantamount to its sale: such sale needs the confirmation of the Collector: against this confirmation an appeal lies to the Commissioner. At the same time an application in revision would lie to the Board under Para. 1011-A of the Revenue Manual. I would, therefore, hold that in, the present case a revision lies to the Board. In the Bareilly case the order passed u/s 5 of the Regulation of 7. Sales Act was subsequent to the order u/s 6 of the Encumbered Estates Act In the present case the order for transfer u/s 5 of the Regulation of Sales Act was anterior by 11 days to tae order passed by the Collector u/s 6 of the Encumbered Estates Act. But no further action for giving effect to the order of the 22nd August, 1935, was taken till March 1936, when a further order was passed for the formal preparation of a sale-deed. At any time between August, 1935, and March, 1936, it was open to the judgment-debtor to question the: confirmation of the transfer by the actual execution of the sale-deed under Rule 8A and by the formal delivery of possession under Rule 8B. On the 21st October, 1935, the judgment-debtor, actually brought on the record an application informing the Assistant Collector that he had obtained an order from the Collector u/s 6 of the Encumbered Estates Act thereafter the Assistant Collector was not authorised to take an; further proceedings in confirmation of the transfer order passed on the 22nd August, 1935 8. It is true that these applications in revision are directed only against the appellate order of the Commissioner, dated 8th January, 1936, and against the order owned Assistant Collector transferring property, dated the 22nd August, 1935. It is true that these applications in revision are directed only against the appellate order of the Commissioner, dated 8th January, 1936, and against the order owned Assistant Collector transferring property, dated the 22nd August, 1935. But in revision the powers of the Board of Revenue are very wide: on our own motion we are empowered to pass such orders as we may think fit as a result of the consideration of the record I would therefore set aside the order of the Assistant Collector, dated 18-19th March, 1936, for the execution and registration of the sale-deed, and the subsequent order, dated the 21st March, 1936, for placing, the decree-holder in actual possession of the property transferred in satisfaction of this decree, seeing that these orders were passed after the acceptance of an application by the Collector u/s 6 of the Encumbered Estates Act. The completion of the transfer of property ordered on the 22nd August, 1935, will be kept pending in the Court of the Assistant Collector so long as the Special Judge does not dispose of the application under the Encumbered Estates Act. 9. For the reasons now given I would set aside the final paragraph of the order of my predecessor, dated the 29th July, 1936, dismissing these two applications in revision. Costs will fall on parties. 10. Bomford J.M.-(November 27, 1936).-I agree with my learned colleague that Mr. Drake-Brockman was correct in holding on reconsideration of the law that revision lies to the Board against order passed under the Regulation of Sales Act against which no provision is made for appeal in the Act. I would not however agree that an order of transfer u/s 5 requires the confirmation of the Collector or that any appeal lies to the Commissioner. If an order has been passed wrongly u/s 5 the Board alone can interfere, and in revision only. 11. I would further agree that action under Rule 8(a) and 8(b) constitutes proceedings within the meaning of Section 7 of the Encumbered Estates Act, which also was the view of Mr. Drake-Brockman. The provisions of Section 7 are mandatory and any order passed by a Court acting under the Regulation of Sales Act after the Collector has taken action u/s 6 of the Encumbered Estates Act is ultra vires and must be set aside, pending the completion of the proceedings in the Court of the Special Judge. Drake-Brockman. The provisions of Section 7 are mandatory and any order passed by a Court acting under the Regulation of Sales Act after the Collector has taken action u/s 6 of the Encumbered Estates Act is ultra vires and must be set aside, pending the completion of the proceedings in the Court of the Special Judge. 12. In this particular case the order u/s 5 will stand and it will be the duty of the Collector to give effect to that cider of the 22nd August, 1935, as soon as he receives the case back from the Special Judge u/s 19 of the Encumbered Estates Act, subject of course to any orders that may be passed in the interim by the Special Judge. 13. I concur in the order proposed. 14. Darling S.M.-(November 28, 1936). -The observations of my learned colleague have been passed after a close consultation: they embody our joint views. Orders will now issue.