Srinivasa Tholappachar v. K. Seshagiri Rao, Sale Officer To The Co-operative Societies At Bellary

(Appeal (disposed of on 17-7-1945) under Cl. 15 of the Letters Patent against the decree and judgment of Chandrasekhara Ayyar, J. dated 5-1-1945 and passed in S.A. No. 321 of 1946 preferred against the decree of the District Court, Bellary in A.S. No. 81 of 1943 (O.S. No. 151 of 1942, District Munsif Court, Hospet).

Leach, CJ.

This is an appeal from a judgment of Chandrasekhara Aiyar, J. under Cl. 15 of the Letters Patent. The appellant has lost in all the three Courts below and we see no reason why he should succeed here.

The appellant is the owner of land in the Bellary district. He leased it to one Ayyaswami Pillai for the purpose of sugar-cane cultivation. The lessee was a member of the Hospet Sugar-cane Growers Co-operative Society and was indebted to the society. An award was passed against him under the provisions of the Madras Co-operative Societies Act, 1932, and in execution of the award the Co-operative Society attached the crop on the land leased to Ayyaswami Pillai. The date of the attachment was the 19th March 194

1. At the time of the attachment a sugar-cane crop was growing on the land. The award was forwarded to the sale officer of the Co-operative department for the purpose of execution. On the 25th March 1941, in the execution proceedings, the appellant had claimed, as the landlord, to be entitled to priority in the sum of Rs. 429 in respect of the rent due. His claim was investigated by the sale officer and allowed by an order dated the 7th April 194

1. The sale officer had fixed the sale for the 8th April 194

1. On that date he passed an order adjourning it until the 21st April 194

1. The appellant says that the postponement was unlawful and that as the result of the postponement the crop could not be gathered in time. Consequently it was ruined. The appellant filed a suit in the Court of the District Munsif of Hospet against the Co-operative Society and the sale officer. He claimed Rs. 1268 against both defendants. The District Munsif dismissed the suit as against the second defendant and his decision was upheld by the District Judge of Bellary on first appeal. It was also upheld by Chandrasekhara Aiyar, J. on second appeal.

The case against the sale officer who was the second defendant and is the only respondent in this appeal, is that he acted wrongfully in postponing the sale and it is said by the appellant that consequently he is liable to him in the sum of Rs. 429 as damages, this sum representing the value of the crop which was lost. The District Munsif dismissed the suit against the sale officer on the ground that he had not been sued as such. The District Judge confirmed the decision on the ground that the sale officer, in ordering the postponement of the sale, was acting in a judicial capacity and consequently was entitled to the protection given by the Judicial Officers Protection Act, 1850. Chandrasekhara Aiyar, J. agreed with the District Judge. The sole question in the appeal is whether the sale officer was acting judicially or merely in an administrative capacity. It is common ground that if he was acting judicially he is entitled to the protection of the Act.

Rules have been framed under the Madras Co-operative Societies Act and they provide for the execution of awards. The officer appointed to execute the award is the sale officer, who is defined in the rules as meaning an officer of the Co-operative department empowered by the Registrar by general or special order to attach and sell the property of defaulters. The tenant was the defaulter and it was the duty of the respondent to execute the award which had been passed against him. R. 22(4)(i) states that the Registrar of the District or the sale officer may, in his discretion, adjourn a sale to a specified day and hour, recording his reasons for such adjournment. Where a sale is so adjourned for a longer period than seven days, a fresh proclamation under Cl. (h) must be made, unless the judgment-debtor consents to waive it. S. 57-B states that the Registrar or a person empowered by him in that behalf shall be deemed, when exercising powers under the Act for the recovery of an amount by the attachment and sale or by the sale without attachment of property, or when passing orders on an application made to him for recovery or to take some step in aid of recovery, to be a civil Court for the purpose of Art. 182 of the First Schedule to the Indian Limitation Act.

There were here proceedings in execution analogous to proceedings in execution under the Code of Civil Procedure and if the Registrar of the District had passed an order directing the postponement of this sale, there would be no doubt that he would have been acting in a judicial capacity. The sale officer is given equal power of ordering an adjournment and he exercised this power in execution proceedings regularly instituted. We can see no difference between the exercise of the power by the Registrar and the exercise of the power by the sale officer. The fact that the order is not appealable does not turn it, from a judicial act, into an administrative act. There are orders contemplated by the Code of Civil Procedure which are judicial orders and which are not appealable.

Agreeing with the judgment of the District Judge and that of Chandrasekhara Aiyar, J. we hold that the sale officer acted judicially in passing the order for the postponement of the sale and that consequently he is entitled to the protection of the Act.

The appeal is dismissed with costs.