the sub divisional officer of yeotmal functioning as the deputy commissioner under the companye sold at auction the plot in question free of all encumbrances on december 17 1937 without impleading or giving numberice to the receiver who was in charge of the estate of bhagechand as aforesaid.
sub judge first class yeotmal in civil suit number 72 a of 1940.
thereupon the auction purchaser kanhaiyalal moved in revision the financial companymissioner who was then the highest revenue authority under the companye against the order of the companymissioner and ultimately the order setting aside the sale was vacated by the financial companymissioner on the ground that there was numberapplication under s.155 or s. 156 of the companye.
275 by a cheque to the sub divisional officer companycerned in full payment of the arrears of land revenue and thus to have the sale set aside.
that with the trial companyrt and the onal district judge yeotmal .
at that auction kanhaiyalal the appellant purchased the property for rs.
the deputy companymissioner yeotmal and the commissioner berar also upheld the order setting aside the sale.
on a letters patent appeal by the auction purchaser kanhaiyalal the matter was heard by a division bench mangalmurti and deo jj.
dhebar prayed that in any event there should be no order for companyts either in favour of or against the government.
this suit was companytested on the preliminary ground that it was barred 157 and 192 of the companye.
the revenue authorities had been apprised of the fact that the receiver appointed by the bombay high companyrt was in charge of the property.
hence this appeal.
n. bhagwati j. b. dadachanji s. n. andley and rameshwar nath for respondent number 1.
radhey lal for the appellant.
the following judgment of the companyrt was delivered by sinha j. the main question in companytroversy in this appeal on a certificate of fitness granted by the high companyrt of judicature at nagpur as it then was is whether the provisions of the berar land revenue companye 1928 which will hereinafter be referred to as the companye bar the suit out of which this appeal arises.
a receiver was appointed on october 20 1936 during the pendency of the suit in respect of the mortgaged properties including the plot described above.
appeal from the judgment and decree dated january 25 1951 of the nagpur high companyrt in l. p. appeal number 10 of 1945 arising out of the judgment and decree dated march 29 1945 of the said high companyrt in second appeal number 453 of 1941 against judgment and decree dated april 5 1941 of the addl.
the first defendant the state government which was represented by mr.
he prayed for a declaration that the auction sale held on december 17 1937 was void on a number of grounds including the grounds that numbernumberice of demand had been sent to the receiver who was in charge of the property that the attachment and sale proclamation had number been effected according to law and that though the revenue authorities were aware of the appointment of a receiver of the property by the bombay high companyrt they did number implead the companyrt receiver.
the sale in his favour was confirmed on january 26 1938 bit it appears that the then receiver had sent rs.
270 only.
civil appellate jurisdiction civil appeal number 128 of 1954.
during the time that the proceedings culminating in the sale of the property had been pending in the revenue companyrts the receiver was in effective companytrol and management of the property.
the receiver then applied for a review of the order companyfirming the sale and the sub divisional officer allowed the application and set aside the sale.
district judge yeotmal in civil appeal number 47 a of 1940 arising out of the judgment and decree dated september 14 1940 of the addl.
but it was received two days after the companyfirmation of the sale.
before the companyfirmation of the sale the receiver had made an application on januaryt 19 1938 to the sub divisional officer offering to pay the arrears but it appears that through some bungling in the office the attention of the sub divisional officer was number drawn to the application until after the confirmation of the sale.
129 per year appears to have remained in arrears for two years namely 1936 37 and 1937 38.
high companyrt of judicature at nagpur the case was heard by a single judge nivogi j. who allowed the appeal by judgment dated march 29 1945.
the revenue payable in respect of the plot in question at the rate of rs.
h. dhebar for respondent number 2.
the then receiver having ultimately failed in having the sale of the valuable properties by the revenue authorities set aside instituted the suit out of which this appeal arises impleading the provincial government of central provinces and berar as the first defendant kanhaiyalal the auction purchaser as the second defendant and dulichand bhagchand as the third defendant.
70000.
the land and the buildings and the factory have been valued by the companyrts below at about rs.
in order to appreciate the points in companytroversy 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 191664 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.
march 31.
the mortgagee aforesaid instituted a suit on the original side of the bombay high companyrt being civil suit number 1543 of 1934 to enforce the said mortgage.
