Mahadaji V. Karandikar vs Hari D. Chikne on 28 June, 1883

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Bombay High Court
Mahadaji V. Karandikar vs Hari D. Chikne on 28 June, 1883
Equivalent citations: (1883) ILR 7 Bom 332
Author: West
Bench: West, N Haridas


West, J.

1. The decree in the present case was one for sale of property to satisfy a claim on a mortgage. To such cases the provisions of Section 210 of the Code of Civil Procedure, as to the allowance of payment by instalments, do not apply. This has been repeatedly ruled–see Shankarapa Dargo Patel v. Danapa Virantapa I.L.R. 5 Bom. 604; Hardeo Das v. Hukam Singh I.L.R. 2 All. 320; and Bachchu v. Madad Ali I.L.R. 2 All. 649. From these it is plain that the Court itself could not, in this case, have made a decree for payment by instalments. Much less, then, could the officer charged with the duty of executing its decree, vary that decree so as to give it an illegal effect in carrying it into execution. The decree having been one for a sale “of immoveable property in pursuance of a contract specifically affecting the same,” the Collector’s discretion was limited to a choice amongst the three courses specified in Section 321 of the Code of Civil Procedure. Amongst these there is not any provision for paying by instalments a sum decreed to be realized as a whole and immediately.

2. In taking on himself the responsibility of departing from the decree sent to him for execution, a Collector acting by his own acknowledgment ministerially, when he delegates his function to an assistant or a mamlatdar, incurs a risk of having to answer is damages to the person who is by any error or mistake deprived of the fruits of his judgment. In R. v. Ingall L.R. 2 Q.B.D. at p. 207 it is said that, a person damnified by the failure to perform a statutory duty is entitled to maintain an action;” and in Picketing v. James L.R. 8 C.P. at p. 503 Bovill, C.J. says: “It is a general rule of law that where a ministerial duty is imposed, an action lies for breach of it, without malice or negligence.” Some of the many cases of actions against sheriffs serve to illustrate this principle, and a Collector will do well to refer the parties concerned to the Court whenever questions arise in which his duty is not clearly marked out by the terms of the code or other statute law, under Which he may have to execute a decree or judicial order.

3. The Court that has made a decree or judicial order, which has then been transmitted for execution to a Collector, is not deprived of the judicial powers with respect to it which may still, at any particular time, be competent to such Court, and which it would have had, had the order been placed in the hands of its own ordinary officer, the nazir. These powers cannot often be called into exercise, but when they are, the Court has, and must have, authority to recall its own record transmitted to the Collector

4. Costs of this reference to be paid by the judgment-debtor.

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