1958 (3) TMI 79 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the provisions of the Berar Land Revenue Code, 1928, bar the suit.
2. Whether the auction-sale held without notice to the Receiver or without impleading him was void or merely irregular.
3. Whether the suit was barred by the provisions of Sections 157 and 192 of the Berar Land Revenue Code, 1928.

Detailed Analysis:

1. Whether the provisions of the Berar Land Revenue Code, 1928, bar the suit:
The main question in controversy is whether the provisions of the Berar Land Revenue Code, 1928 (the Code), bar the suit out of which this appeal arises. The suit was contested on the preliminary ground that it was barred by Sections 157 and 192 of the Code. The High Court affirmed that the suit was not barred, hence the appeal.

2. Whether the auction-sale held without notice to the Receiver or without impleading him was void or merely irregular:
The appellant argued that the sale without notice to the Receiver or without impleading him was not void but only irregular. The respondent countered that property in the hands of a Receiver is custodia legis and is exempt from all judicial processes except with the court's permission. The sale held without such permission is a nullity and not merely an irregularity. The Court observed that while the absence of notice to the Receiver does not render the sale void ab initio, it makes the sale voidable and could be declared illegal in a proper proceeding or by suit.

3. Whether the suit was barred by the provisions of Sections 157 and 192 of the Berar Land Revenue Code, 1928:
- Section 157: The appellant argued that the suit was barred under Section 157, which bars all claims on the ground of irregularity or mistake unless an application under Section 156 is made within the time allowed. The Court noted that Section 157(1) is confined to claims of irregularity or mistake and does not cover grounds such as fraud or that the arrear for which the property is sold was not due. The present suit was not based on irregularity or mistake but on the grounds that the sale was illegal due to the lack of notice to the Receiver and the absence of the court's permission, thus not covered by Section 157.
- Section 192: The appellant contended that Section 192 bars the suit as it prevents civil courts from entertaining suits on matters that the Provincial Government or any Revenue Officer is empowered to determine. The Court held that the present suit was not a matter that the revenue authorities under the Code were empowered to determine. The suit sought a declaration that the sale did not affect the interests in the custody of the Court through its Receiver and for recovery of possession, which is not within the jurisdiction of the revenue authorities under the Code.

Conclusion:
The Court concluded that the auction-sale impugned in this case was illegal due to the absence of notice to the Receiver and the lack of the court's permission. The suit was not barred by the provisions of the Berar Land Revenue Code, 1928. The appeal was dismissed with costs to the Receiver who alone contested the appeal.