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B.P.SINHA, K.SUBBA RAO, SYED JAFAR IMAM
Kanhaiyalal – Appellant
Versus
D. R. Banaji – Respondent
Key Points: - The sale of property in custodia legis without leave of the court or notice to the Receiver is examined for its legality, with the Court noting such sales are not void ab initio but may be voidable or illegal depending on circumstances (!) (!) - The Berar Land Revenue Code establishes a paramount charge for land revenue and provides a summary recovery mechanism; it does not contemplate interposition of a Receiver by the Civil Courts in respect of government revenue, affecting analysis of rights in custodia legis (!) (!) - Section 157(1) bars suits on grounds of irregularity or mistake; the present suit was found not to fall within 157(1), 157(2), or 155, and thus not barred by these provisions (!) (!) (!) - Section 192(1) bars civil Court jurisdiction over matters the Revenue or a Revenue Officer is empowered to determine; the Court held the present suit not within the specific enumerations of 192, and not barred by 192, because it seeks a declaration and possession relief not within those listed matters (!) (!) (!) - The High Court’s conclusion that the auction-sale was illegal was upheld, and the appeal was dismissed with costs in favor of the Receiver (!) (!)
Judgment
B. P. SINHA, J.: The main question in controversy in this appeal on a certificate of fitness granted by the High Court of Judicature at Nagpur (as it then was), is whether the provisions of the Berar Land Revenue Code, 1928, (which will hereinafter be referred to as the Code), bar the suit out of which this appeal arises.
2. In order to appreciate the points in controversy in this appeal, it is necessary to state the following facts: One Bhagchand Jairamdas was the occupant of a plot, situated in the District town of Yeotmal in what was then called the Province of Central Provinces and Berar, measuring 1,91,664 square feet in area, on which stood a ginning factory and its appurtenant buildings. Bhagchand aforesaid had executed a mortgage-bond in favour of one Abubakar. The mortgagee aforesaid instituted a suit on the original side of the Bombay High Court, being Civil Suit No. 1543 of 1934, to enforce the said mortgage. A Receiver was appointed on 20th October 1936, during the pendency of the suit in respect of the mortgaged properties including the plot described above. The land and the buildings and the factory, have been valued by the Courts below at about Rupees 70,000.
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