Appeal No 128 of 1954
Appeal from the judgment and decree dated January 25 1951 of the Nagpur High Court in L P Appeal No 10 of 1945 arising out of the judgment and decree dated March 29 1945 of the said High Court in Second Appeal No 453 of 1941 against judgment and decree dated April 5 1941 of the Addl
District Judge Yeotmal in Civil Appeal No 47 A of 1940 arising out of the judgment and decree dated September 14 1940 of the Addl
Sub Judge First Class Yeotmal in Civil Suit No 72 A of 1940
Radhey Lal for the appellant
P N Bhagwati J B Dadachanji section N Andley and Rameshwar Nath for respondent No 1
R H Dhebar for respondent No 2 1958
March 31
The following Judgment of the Court was delivered by 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 335 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
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 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
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 October 20 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 Rs 70000
The revenue payable in respect of the plot in question at the rate of Rs 129 per year appears to have remained in arrears for two years namely 1936 37 and 1937 38
The Sub Divisional Officer of Yeotmal functioning as the Deputy Commissioner under the Code sold at auction the plot in question free of all encumbrances on December 17 1937 without impleading or giving notice to the Receiver who was in charge of the estate of Bhagechand as aforesaid
At that auction Kanhaiyalal the appellant purchased the property for Rs 270 only
The sale in his favour was confirmed on January 26 1938 bit it appears that the then Receiver had sent Rs 275 by a cheque to the Sub Divisional Officer concerned in full payment of the arrears of land revenue and thus to have the sale set aside
But it was received two days after the confirmation of the sale
Before the confirmation 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 not drawn to the application until after the 336 confirmation of the sale
The Receiver then applied for a review of the order confirming the sale and the Sub Divisional Officer allowed the application and set aside the sale
The Deputy Commissioner Yeotmal and the Commissioner Berar also upheld the order setting aside the sale
Thereupon the auction purchaser Kanhaiyalal moved in revision the Financial Commissioner who was then the highest Revenue authority under the Code against the order of the Commissioner and ultimately the order setting aside the sale was vacated by the Financial Commissioner on the ground that there was no application under s155 or section 156 of the Code
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
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 no notice of demand had been sent to the Receiver who was in charge of the property that the attachment and sale proclamation had not 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 Court they did not implead the Court Receiver
This suit was contested on the preliminary ground that it was barred 157 and 192 of the Code
That with the trial court and the onal District Judge Yeotmal
High Court of Judicature at Nagpur the case was heard by a Single Judge Nivogi J who allowed the appeal by judgment dated March 29 1945
On a Letters Patent appeal by the auction purchaser Kanhaiyalal the matter was heard by a Division Bench Mangalmurti and Deo JJ The Bench affirmed the decision of the learned Single 337 Judge and held that the suit was not barred
Hence this appeal
It was urged on behalf of the appellant the auction purchaser who was the second defendant in the suit and who only is interested in having the sale in question sustained by the Court that the sale without notice to the Receiver or without impleading him was not void but only irregular and secondly that in any event the suit was barred by the provisions of sections 157 and 192 of the Code
The first defendant the State Government which was represented by Mr Dhebar prayed that in any event there should be no order for costs either in favour of or against the Government
On behalf of the plaintiff respondent it was urged that property in the hands of a Receiver is custodia legis and is exempt from all judicial processes except to the extent that the Court which has appointed the Receiver may accord permission to the Receiver or to third parties to institute proceedings in respect of the property that no permission of the Bombay High Court which had appointed the Receiver having been taken for the sale of the property the sale held without such a permission is a nullity that at any rate such a sale was not a mere irregularity but an illegality and could be avoided by suit that there being no valid attachment of the property with notice to the Receiver the attachment itself was illegal and on that ground also the sale was void and lastly that the suit was not barred by the provisions of the Code as held by the High Court
The facts as set out above are not in controversy
During the time that the proceedings culminating in the sale of the property had been pending in the Revenue Courts the Receiver was in effective control and management of the property
The revenue authorities had been apprised of the fact that the Receiver appointed by the Bombay High Court was in charge of the property
As a matter of fact an attempt had been made by the revenue authorities in the first instance to approach the Collector of Bombay for realising the 43 338 arrears of land revenue in respect of the plot in question but the mistake was that no approach was made to the Bombay High Court or even to the Receiver for paying up the arrears of the Government demands
It was certainly the duty of the Receiver to see to it that all public demands in respect of the properties in his charge were paid in due time and in
this case certainly the arrears in respect of the year 1937 38 which fell due in August 1938 accrued in his time if not also the arrears in respect of the previous year 1936 37
If the Receiver had been more vigilant or if the revenue authorities had made the demand from the Receiver in respect of the arrears they may have been paid up in due course without the necessity of putting the property to sale
So far as the Indian Courts are concerned it is settled law that a sale held without making attachment of the property or without duly complying with the provisions of the law relating to attachment of property is not void but only voidable
Rule 52 of 0
21 of the Code of Civil Procedure requires that where the property is in the custody of any court or public officer attachment shall be made by a notice to such court or officer
But the absence of such a notice would not render the sale void ab initio because the jurisdiction of the court or the authority ordering the sale does not depend upon the issue of the notice of attachment
It is also settled law that proceedings taken in respect of a property which is in the possession and management of a Receiver appointed by Court under 0 40 r I of the Code of Civil Procedure without the leave of that Court are illegal in the sense that the party proceeding against the property without the leave of the Court concerned is liable to be committed for contempt of the Court and that the proceedings so held do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who ultimately may be adjudged by the Court to be entitled to the same
The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India holding that a sale held without notice to the Receiver or 339 without the leave of the Court appointing the Receiver in respect of the property is void ab initio
In the instant case we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver without the leave of the Court is a nullity
The American Courts appear to have taken the view that such a sale is void
In our opinion it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit
We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio
On the assumption that the sale held in this case without the leave of the Court and without notice to the Receiver is only voidable and can be declared illegal on that very ground the suit had been instituted for the declaration that the sale by the revenue courts was illegal
The plaint was subsequently amended by adding the relief for recovery of possession because in the meanwhile the auction purchaser had obtained delivery of possession of the property through the revenue authorities some time in 1940
The general rule that property in custodia legis through its duly appointed Receiver is exempt from judicial process except to the extent that the leave of that court has been obtained is based on a very sound reason of public policy namely that there should be no conflict of jurisdiction between different Courts
If a court has exercised its power to appoint a Receiver of a certain property it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined
If other Courts or Tribunals of co ordinate or exclusive jurisdiction were to permit proceedings to lo on independently of the Court which has placed the custody of the property in the hands of the Receiver there was a likelihood of confusion in the administration of justice and a possible conflict of jurisdiction
The Courts represent the majesty of law and naturally therefore would not do anything to weaken the rule of law or to permit any proceedings 340 which may have the effect of putting any party in jeopardy for contempt of court for taking recourse to unauthorised legal proceedings
It is on that very sound principle that the rule is based
Of course if any Court which is holding the property in custodia legis through a Receiver or otherwise is moved to grant permission for taking legal proceedings in respect of that property the Court ordinarily would grant such permission if considerations of justice require it
Courts of justice therefore would not be a party to any interference with that sound rule
On the other hand all Courts of justice would be only too anxious to see that property in custodia legis is not subjected to uncontrolled attack while at the same time protecting the rights of  all persons who may have claims to the property
After making these general observations we have to examine the provisions of the Code to find out how far that general rule of law is affected by those provisions
The Berar Land Revenue Code provides that  land revenue assessed oil any land shall be a first charge on that land and on the crops rents and profits thereof  section 131
Section 132 makes the occupant in respect of the land in question  primarily liable for the payment of the land revenue  but section 133 provides that in case of default of payment of land revenue by the person who is primarily liable   the land revenue including arrears shall be recoverable from any person in possession of the land
 Hence in this case the revenue authorities could legally call upon the Receiver to pay the arrears of land revenue and as pointed out above it would have been the duty of the Receiver to pay up those arrears
Under section 135 the Receiver would be deemed to be a I defaulter  in respect of the land revenue
Section 140 makes the statement of account certified by the Deputy Commissioner or the Tahsildar conclusive evidence of the existence of the arrears and of the person shown therein as the defaulter for the purposes of the Chapter in which the section finds a place namely Chapter XII headed as  Realization of Land Revenue 
One of the modes laid down in 341 s141 e of the Code for the recovery of arrears land revenue is  attachment and sale of the holding on which the arrear is due
 If a sale is held under the provisions of section 141 c section 149 2 provides that such a sale  shall transfer the holding free of all encur brances imposed on it   
Thus the appellant if the sale in his favour was a valid on acquired the property said to be worth Rs 70000 from from all encumbrances including the mortgage money due on the property and for which the suit in the Bombay High Court had been instituted even though he paid Rs 270 only for it
The principal question for determination in the appeal therefore is whether in view of the special provisions of the Land Revenue Code the presesuit could be entertained by the civil court
It beyond question that the Code lays down a special machinery for the realization of Government reven which has been declared as the paramount charge the property
It lays down a summary procedure for the realization of public revenue and all question coming within the purview of the Code must I determined according to the procedure laid down that Code
Hence in so far as the Code has laid do specific rules of procedure those rules and no other must apply in the determination of all controversies coming strictly within the terms of the statute One thing is absolutely clear namely that the Code does not lay down any specific rules in respect of pro party which has been placed in custodia legis
The Code contemplates regular payment of Government revenue by the owner possessor or the occupant the property in respect of which Government revenue is payable
It also takes notice of devolution of interest by transfer or succession but it does notice contemplate the inter position of a Receiver in respect of the property subject to the payment of Government revenue
This aspect of the matter becomes important because the only point for determination in the appeal is whether the auction sale held under the Code without the leave of the Court or without notice to the Receiver appointed by the Court should affair 342 Le interest which the Bombay High Court had by pointing the Receiver sought to protect if the sale favour of the appellant stands
The mortgagee s security for the payment of the mortgage debt in the vent of the auction sale being sustained is to that tent adversely affected without his having any voice the matter
Perhaps if the Receiver were not there the mortgagee may have been more vigilant and by have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on the mortgage
It has been strenuously argued on behalf of the appellant that the present suit cannot be maintained in few of the provisions of the Code particularly 157 and 192 which we now proceed to examine
action 157 is in these terms  157
1 If no application under section 156 is made within the time allowed therefor all claims on the ground of irregularity or mistake shall be barred
2 Nothing in sub section 1 shall bar the institution of a suit in the civil court to set aside a sale on the ground of fraud or oil the ground that the arrear for which the property is sold was not due
 his section makes reference to proceedings under the previous
Section 156 contemplates an application for setting aside the sale  on the ground of some material irregularity or mistake in publishing or conducting it  at the instance of a person  whose interests are affected by the sale 
Assuming that in the instant case the Receiver is a person whose interest can be said to have been affected by the sale the ground on which he could have moved the Revenue athorities for setting aside the sale was limited to material irregularity or mistake in publishing or Inducting the sale
This provision proceeds on the assumption that the necessary parties have been apprised of the proceedings relating to the realization Government revenue
It assumes that the proceedings have been properly taken but there may have been some material irregularity or mistake at a later age of the proceedings namely in publishing or enducting the sale
It is clear that the ground on 343 which the present suit is based would not be covered by the crucial words quoted above on which alone section 156 could be availed of  Publishing  the sale has reference to that part of the proceedings which relates to the sale proclamation and conducting  the sale has reference to acts or omissions at a still later stage of some officer or public authority who is entrusted with holding the sale
It is clear therefore that the provisions of section 156 are out of the way of the plaintiff in this suit
So also are the provisions of section 155 which relate to an application for setting aside a sale on deposit of arrears within 30 days from the date of the sale
An application under section 155 can only be made by a person either owning such property or holding an interest therein by virtue of a title acquired before such sale 
A Receiver appointed under 0
40 of the Code of Civil Procedure unlike a Receiver appointed under the Insolvency Act does not own the property or hold any interest therein by virtue of a title
He is only the agent of the court for the safe custody and management of the property during the time that the court exercises jurisdiction over the litigation in respect of the property
Section 1571 of the Code which positively bars a suit is in express terms confined to  all claims oil the ground of irregularity or mistake 
It does not cover grounds other than those for example if a sale is attacked on the ground that the owner of the property was dead at the date of the sale or that there had been some fraud in connection with the sale proceedings or that he had been kept out of  his remedy under the Code by some fraudulent act or that there was really no arrear due in respect of the property sold or such allied grounds suits based on grounds like these would not be within the prohibition of section 1571
Section 1572 specifically saves certain suits of the kind referred to therein but it does not necessarily follow that suits not directly within the terms of sub section
2 of section 157 are covered by the provisions of the positive bar laid down by section 1571
There may be a tertium quid between the grounds covered by section 1571 and section 1572
It is clear that 344 the present suit is not covered either by the terms of section 1571 or those of section 1572
As already indicated the position emerging in the present controversy is not covered by the express provisions of section 157
But it has been argued on behalf of the appellant that even though the provisions of section 157 do not cover the ground raised in the present suit section 1921 of the Code bars the suit
Section 1921 is in these terms  192
1 Except as otherwise provided in this Law or in any other enactment for the time being in force no civil court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Provincial Government or any Revenue Officer 
is by this Law empowered to determine decide or dispose of and in particular and without prejudice to the generality of this provision no civil court shall exercise jurisdiction over any of the following matters  It is not necessary to set out the clauses a to p under sub section
1 of section 192 because none of those clauses has been claimed clearly to cover the present suit
Learned counsel for the appellant contended that setting aside a sale has been specifically provided for by the Code which the several authorities under the Code have been empowered to determine decide or dispose of within the meaning of the section
There is no doubt that the matter of the setting aside of a sale by payment of the arrears under section 155 and on the specific grounds under section 156 as discussed above has been provided for in the Code but as already observed the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale
Strictly speaking this is a suit for a declaration that the sale held by the revenue courts does not affect the interests which are in the custody of the Court through its Receiver and for recovery of possession as against the auction purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver under the directions of the Bombay High Court
In short this is not a suit simpliciter to 345 set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief A suit for such a declaration on the grounds taken by the Receiver and for possession is not a matter which the several authorities under the Code have been empowered to determine decide or dispose of
But the learned counsel for the appellant further contended that section 192 takes in its sweep all the relevant provisions of the Code bearing on the rights of the Receiver to have a sale set aside
Undoubtedly it is so but as pointed out above the Receiver could not have brought the present controversy within the terms of any one of those sections
In this connection reliance was also placed on the provisions of sections 32 38 and 159 of the Code
In our opinion those sections have no bearing on the present controversy
Section 32 deals with appeals and appellate authorities and lays down the hierarchy of officers to deal with an appeal
Section 38 prescribes the authorities to deal with revisional matters and section 159 conserves the power of the Deputy Commissioner to pass orders suo moto that is to say where no application has been made under section 155 or section 156 or even beyond the period of thirty days which is the prescribed period for making applications under those sections
Thus if the leave of the Bombay High Court had been taken to initiate proceedings under the Code for the realization of Government revenue or if the Receiver had been served with the notice of demand it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the Property in his charge in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit
If such a step had been taken and if the Receiver in spite of notice had allowed the auction sale to be held for non payment of Government demands the sale would have been valid and subject only to such proceedings as are contemplated under sections 155 and 156 of the Code
In that case there would have been no conflict of jurisdiction and therefore no question 44 346 of infringing the sound principle discussed above
But the absence of the leave of the Court and of the necessary notice to the Receiver makes all the difference between a valid and an illegal sale
The High Court has also relied upon the well known rule of natural justice audi alteram partem as another reason for holding the sale to be illegal
It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute
For the reasons given above we agree with the High Court in its conclusion that the auction sale impugned in this case was illegal and that the suit was not barred by the provisions of the Code
The appeal is accordingly dismissed with costs to the Receiver who alone has contested the appeal
Appeal dismissed


Summary:
The appellant was appointed from July 3 196X as principal of the School run by the respondent society a body registered under the MP Non trading Corporation Act 1962
On June 23 1971 the appellant s services were terminated with immediate effect by giving one month s salary in lieu of notice
The appellant made representation to the Divisional Superintendent of Education who directed the Society to rescind the order of termination because according to him the termination of the appellant was wrongful being in breach of Regulation 79 of the Regulations framed by the Board of Secondary Education under section 282d of Madhya Pradesh Madhyamik Shiksha Adhiniyam 1955
The appellant however was not re instated by the society
The appellant therefore filed a petition in the High Court which was dismissed
The High Court held that 1 the said Regulations had on statutory force and therefore the violation in this case of the procedure prescribed in Regulations 71 and 79 would not render the order of termination null and void 2 the appellant s remedy was only by an action for damages for breach of master and servant contract and 3 the school being run by a private body no writ of mandamus could he issued
Allowing the appeal it was HELD ection 282d of the Act confers power on the Board to make Regulations regarding the conditions of recognition of the Institutions as well as for framing of School Code to ensure minimum standard of efficient and uniform management of such schools
447B C PG NO 442 PG NO 443 2 As has been held by this Court in Sukhdev Singh s case there is no subtantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute
There is therefore no escape from the conclusion that the regulations in the present case have force of law1449B 3 A observed in Sukhdev Singh s case the doctrine of ultra vires as applied to statutes rules and orders should equally apply to the regulations and any other subordinate legislation
450G 4 The order of termination of the appellant from the post of Principal of the Higher Secondary School in breach of Regulation 79 is illegal and as such the same is liable to be quashed as the Regulations have got statutory force
The appellant is liable to be reinstated in the service as Principal of the said school
454A B 5 The Higher Secondary School in question though run by a private trust receives 100 grant from the Government and as such it is amenable to the writ jurisdiction for violation of the provisions of the said Regulations in passing the order of termination of service of the appellant
454B C Dr Ram Pal Chaturvedi vs State of Rajasthan 1970 I SCC 75 Indian Airlines Corporation vs Sukhdeo Rai   Sukhdev Singh  Ors
vs Bhagatram Sardar Singh Raghuvanshi and Anr   Prabhakar Ramakrishna Jodh vs AL Pandi and Anr  Manmohan Singh Jaitla vs Commissioner UT of Chandigarh  Ors 1984 Supp
SCC 540 and Indra Pal vs Managing Committee Model Inter College Thora l984 3 SCC 384 referred to