Grimwood Mears, C.J., Pramada Charan Banerji and Rafiq, JJ.
1. On the 20th of August, 1913, certain property in the village of Ghausganj Narayan was put up to auction. Badri Singh and Tulsi Ram bid on that occasion, and Tulsi Ram, asserting himself to be a co-sharer, capped each bid, as it was made, with a bid of a correspondingly equal sum, intending to exercise the preferential right which is accorded to a co-sharer under the provisions of Order XXI, Rule 88. Badri Singh was prepared to pay Rs. 160 for the plot. So also was Tulsi Ram. A report was made of these circumstances and, in due course, the matter came up before the Collector of Bareilly, on the 24th of October, 1913, for the confirmation of the sale. In none of the courts was the document, which we are now about to read, laid before the courts. Mr. Damodar Das has furnished to us a certified copy of the actual order of the Collector. It is evident from that document that Tulsi Ram had been served with a notice that the matter would be heard and determined on the 24th of October. Tulsi Ram was absent, and, in his absence, there was no evidence before the Collector as to whether his allegation that he was a co-sharer had or had not a foundation in fact, and the Collector passed an order that the sale was to be confirmed in favour of Badri Singh. The actual words are: 'Present, Badri Singh in person. Tulsi Ram absent, despite due service of notice. The pre-emptor Tulsi Ram has failed to appear and prove his claim to pre-empt. Sale may be confirmed in favour of the purchaser Badri Singh.' After that, the usual certificate of sale was issued to Badri Singh and mutation proceedings instituted and appropriate order made in favour of Badri Singh.
2. In 1915 Tulsi Ram brought a suit against Badri Singh to recover possession of this property. That suit was, however, withdrawn with liberty to Tulsi Ram, if so advised, to commence a new suit. Nothing whatever was done until the 26th of July, 1919, just within six years from the date of the order of the Collector. That suit also sought to get possession of the land which had formed the subject-matter of the sale by auction, and asked for a declaration that by virtue of a right of pre-emption according to law Tulsi Ram was the owner of the shares, and also that it might be declared that the sale certificate, the delivery of possession, and the mutation of names effected in favour of the defendant were ineffectual against the plaintiff's property and, further, asked that the defendant might be dispossessed and the plaintiff put into possession.
3. The question which has arisen is, whether that was a competent action to bring under the circumstances which we have already detailed.
4. Our attention has been drawn to Order XXI, Rule 92. That rule, as will, be seen, is incorporated in the notification of Government, No. 1887, dated the 7th of October, 1911, in exercise of the power conferred by Sections 68 and 70 of the Code of Civil Procedure of 1908. The subject which is dealt with is the sale of ancestral land in execution of civil court decrees in the United Provinces of Agra and Oudh. The operative part of Rule 32 is in precisely the same language as the operative part of Order XXI, Rule 92. The full text of Rule 32 is as follows: 'Where no application is made under Rule 30 or Rule 31, or where such application is made and disallowed, the Collector shall make an order confirming the sale, and, thereupon, the sale shall become absolute.' Now, it is conceded that that is the only rule which gives to the Collector the power of making an order confirming the sale. It is agreed that, in the circumstances, there was, in fact, no application either under Rule 30 or Rule 31, and, therefore, the Collector had this one duty before him, either of confirming the sale or declining to confirm it. It was with the object of arriving at a proper decision that he had given notice to Badri Singh and Tulta Ram to appear before him. Therefore, Tulsi Bam was given the proper opportunity of presenting the facts of his case to the Collector with a view to bring himself within the language of Order XXI, Rule 88, which has its counterpart in Rule 29 of the rules made by the Local Government. Had he proved that he was a co-sharer, had he proved that he had made the same bid which had been made by Badri Singh, it is scarcely conceivable that the Collector would not have passed an order in favour of Tulsi Bam. Tulsi Bam had this opportunity and he did not avail himself of it, nor did he make subsequently to the Collector any application, for good reasons shown, that the indulgence should be granted to him of having the matter re-heard. What he did, in fact, was to commence his suit. The question is whether the commencing of that suit was net in direct defiance of Rule 32, Clause (3). We have already given the text of Rule 32 and pointed out that the Collector was adjudicating on the 24th of October, 1913, on this question of confirming or refusing to confirm the sale. Clause (3) is as follows: 'No suit to set aside an order made under this rule shall be brought by any person against whom such order it; made.' Tulsi Ram was the person against whom such order was made. The order, in fact, that was made was that Badri Singh was to be declared purchaser, and we are of opinion that Rule 32, Clause (3), in the circumstances, is a complete answer to this suit, and Tulsi Ram was incompetent to bring it. That order of the Collector of the 24th of October, 1913, was an order made under Rule 32, was good at the date of the commencement of the suit, and is good today, and no proceeding by way of suit, in our view, was capable of being instituted by Tulsi Ram on the day on which he brought this action. We are, therefore, of opinion that Clause (3) operates as a bar to this action. We allow the appeal, set aside the decree of the court below and restore that of the court of first instance.