The Court has jurisdiction to investigate the question of benami in a revenue sale application, and the Collector is not competent to address the question of benami under Section 38(5), Revenue Recovery Act.

Venkataramana Rao, J.

1. This is a revision petition against an order made in the course of proceedings taken Under Section 40, Revenue Recovery Act, for delivery of possession of the property purchased by the petitioner in a revenue sale. The property known as Mattangangal estate was brought to sale for arrears of revenue by reason of the default committed by the pattadars Karuppan Chetti and Avadayam Chetti and purchased by the petitioner Padmanabha Iyer. The said sale was confirmed on 20th June 1935 and a certificate of sale was issued in his favour Under Section 38, Revenue Recovery Act. On the strength of the said certificate, he made an application to the District Court of Tanjore for delivery of possession of the said property and an order for delivery was made; but when he sought to take possession, he was obstructed by Visalakshmi Achi, the respondent herein. Thereupon the petitioner filed an application Under Order 21, Rule 95 and 98, Civil P.C. for removal of the obstruction and delivery of possession. The plea of the respondent was that the purchase of the estate was made benami for her and with the aid of her moneys, and that she soon after took possession of the estate in pursuance thereof and has been in possession of the village in her own right as the real purchaser. The learned District Judge directed an enquiry into the matter. It is against this order this civil revision petition has been filed.

2. The contention of Mr. V.T. Rangaswami Ayyangar on behalf of the petitioner is that the lower Court has no jurisdiction in an application Under Section 40, Revenue Recovery Act to go into the question of benami, that it was bound to direct delivery of possession by removing the obstruction and that the only remedy for the respondent is only to file a suit for establishing her right. He laid considerable emphasis on the language of the section, especially the words "shall cause the proper process to be issued." Section 40, Revenue Recovery Act, has been enacted for the purpose of enabling a purchaser at a revenue sale to get possession of the property without resorting to the necessity of instituting a suit as there is no machinery provided by the Act to enable such purchaser being put in possession. The aid of the Civil Court is therefore provided for by the Legislature and the section therefore enacts that the purchaser at a revenue auction must be treated in the same manner as if the purchased lands had been decreed to the purchaser by a decision of the Court. This section was interpreted so early as 1889 by a Bench of this Court consisting of Muthusami Ayyar and Parker JJ. in A.A.A. O. No. 27 of 1889, where the learned fudges held that the intention of the enactment was to place the purchaser for the purpose of recovering possession of the land purchased in the position of a decree-holder and that he would be entitled to such remedies as would be available to a decree, holder in execution proceedings. The same learned Judges adhered to the same interpretation in Chithambaram v. Natasam (1891) 1 M.L.J. 594 and they remarked thus:

If the execution of the process is obstructed, the provisions of the Code of Civil Procedure become applicable, To hold otherwise, would be to defect the intention of Section 40, Revenue Recovery Act, which gives a certificate the same force, which a decree of Court has under the Code of Civil Procedure.

3. This view was followed in a case reported in Gnanasambanda Pandara Sannadhi v. David Nadar (1904) M.L.J. 433 where the learned Judges held that where a Court awarded possession Under Section 40 to a purchaser at a revenue auction, restitution could be ordered on the sale being set aside. See also Sambasiva Mudaliar v. Panchanada Pillai (1908) 31 Mad 24 which seems to take the same view. This view is in consonance with the principle that when a duty of a particular character is cast upon an established Court, it imports that the ordinary incidents of the procedure of that Court are t