1. A preliminary objection is taken that no appeal lies to this High Court and it is based on the contention that the case is governed by the old law and not by the new Tenancy Act (Local Act 3 of 1926).
2. The appeal purports to be from an order rejecting certain objections to the confirmation of a sale. Under the old law an appeal from such an order undoubtedly lay as far as we are aware to the Commissioner and not to the High Court. An appeal was preferred to the Commissioner. But it was opposed by the decree-holder on the ground that the case was governed by the new law and that an appeal should really have been filed under Section 248, Sub-clause 3 of the new Tenancy Act. The Commissioner entertained this objection raised on behalf of the decree-holder and returned the appeal for presentation to the proper Court. The judgment-debtor presented his appeal to the District Judge instead of to the High Court. The learned Judge has held that the valuation of the suit having been more than Rs. 5,000 the appeal ought to have been preferred to the High Court. He has accordingly returned the memorandum of appeal for presentation to this High Court. The appeal has now boon preferred in this High Court.
3. The learned advocate for the decree-holder now changes his position and urges that the case is not governed by the new Act at all but by the old law and that no appeal lies to the High Court. We think that when on the objection having been taken by the decree-holder himself the appeal was returned for presentation to the proper Court, he has accepted the jurisdiction of this Court as the proper forum for purposes of appeal. He cannot now be allowed to raise the question that the appeal should not have been returned by the Commissioner at all. In our opinion he is estopped from raising any question of jurisdiction inasmuch as it was on his own insistence that the appeal was returned by the Commissioner. We, therefore think that we cannot allow the decree-holder's counsel to raise the question that the case is not governed by the now Act.
4. It may in this connexion be pointed out that the sale actually took place on 20th July 1927, and objections to the sale were made subsequently and they were rejected by the Commissioner at a time when the new Act was actually in force.
5. There can be no doubt that under the new Act an appeal lies to the High Court. Under Section 248, Sub-clause (c), an appeal lies from any order of a Collector mentioned in Order 43, Rule 1, Civil P.C., and that order includes one refusing to set aside the sale. Under the proviso to Section 242 the appeal from such an order where the subject matter of the suit exceeds Rs. 5,000 lies to the High Court. There is no doubt, therefore, that the old law under which the appeal was filed to the High Court no longer prevails and the right of appeal exists.
6. On the merits we have no doubt whatsoever that the order of the District Collector (wrongly described as District Magistrate) cannot be supported and ought to be set aside. It is not any judicial adjudication of the numerous objections raised by the judgment-debtor. No reason is given in it and it is not at all clear whether the various objections raised by the judgment-debtor which were five in number were considered and disposed of. Nor does it appear that he was given any opportunity to produce evidence to substantiate the objections which he had raised.
7. We accordingly allow this appeal and setting aside the order of the District Collector dated 9th August 1927, send the case back to his Court to be disposed of according to law.
8. As regards the question that this appeal has been preferred beyond time it may be pointed out that the law had been altered shortly before the appeal was filed and there is nothing to suggest that the judgment-debtor was acting in bad faith in filing the appeal before the commissioner. As a matter of fact he had a longer time to file his appeal in the High Court. The appellant has sufficiently explained the delay by the circumstance that he was prosecuting his appeal in good faith before the Commissioner and the District Judge. We accordingly extend the time fixed for filing the appeal under Section 5, Lim. Act. We direct that the costs of this Court should abide the event.