John Stanley, C.J. and William Burkitt, J.
1. The matters which have led to this appeal are shortly as follows: One Multan Singh obtained a decree for sale on a mortgage made by the defendants, and in execution of that decree had the property put up for sale. Part of the property was non-ancestral and this portion was sold by the Civil Court. The remainder being ancestral, the sale of it was transferred to the Collector. On the 20th of September 1904, the Collector sold this portion to the plaintiff for a sum of Rs. 25,000. On the 5th of October 1904, Izzat Ali, one of the co-owners of the property, filed an objection to the sale alleging material irregularities in its conduct and consequent loss of a substantial nature, and praying that the sale should be set aside under Rule 17 (XII). On the 19th October following one of the defendants, Abdul Hai, also a co-owner, applied to the Collector under Rule 17 (XIIIA) to have the sale set aside, depositing at the same time in Court a sum equal to 5 per cent. of the purchase money and also the amount of the decree. His Application was rejected by the Collector on the 11th of November 1904, on the ground, so far as we understand the order, that there was pending an application by Izzat Ali to have the sale set aside on the ground of material irregularity in the conduct of it. The Collector seems to have held that Abdul Hai, one of the owners of the property, could not apply under Rule 17, (XIII A) so long as, there was pending an application on the part of another co-owner under Rule 17 (XII). In his order the Collector says: 'It has been urged that he (i.e., Abdul Hai) is only a mortgagor under the second mortgage represented by the amount of Rs. 2,234-8-0 and that Izzat Ali is a mortgagor under the first mortgage also represented by the amount of Rs. 24,632; that they are therefore different persons. I am unable to accept this contention. They are both judgment-debtors and originally joint defendants in the suit, and I hold that Abdul Hai is not entitled to make the application under Section 310A unless the application under Section 311 is withdrawn.' He therefore, as the application of Izzat Ali had not been withdrawn, rejected the application of Abdul Hai. We do not profess to understand exactly the meaning of the language used by the Collector, but we take it that he refused the application of Abdul Hai on the ground that he alone was not a person who could apply under Rule 17 (XIIIA). We may point out that by oversight he cited in his order Section 310A and Section 311 of the Code of Civil Procedure instead of Rule 17 (XII) and 17 (XIIIA) of the Rules of Government passed under Section 320.
2. An appeal was preferred to the Commissioner of the Meerut Division, with the result that, allowing the appeal, he set aside the order confirming the sale. In consequence of this order the present suit was instituted.
3. The Rules to which we have referred are Rules framed by the Local Government under Section 820 of the Code of Civil Procedure for regulating the sale of ancestral lands by the Collector. Rule 17 (XIIIA) corresponds with Section 310A of the Code. The Court below dismissed the plaintiffs suit and hence this appeal.
4. It was argued before us at considerable length that no appeal lay from the Collector's order to the Commissioner but in the view which we take of the case it is unnecessary to determine this question. It appears to us that when Abdul Hai deposited the money required to be deposited by the Rule in question the Collector was bound to pass an order setting aside the sale and had no option in the matter. The language of the Rule is as follows: 'If such deposit is made within 30 days the Collector shall pass an order setting aside the sale.' But it is said that the proviso to the section justified the Collector in passing the order now impeached, That provise is that if a person applies under Rule 17 (XII) to set aside the sale of his immovable property, he shall not be entitled to make an application under this Rule, that is Rule 17 (XIIIA). The contention is that inasmuch as Izzat Ali, one of the co-owners, made the application to which we have referred under Rule 17 (XII), Abdul Hai could not, in view of the language of the section, succeed in an application to have the sale set aside under Rule 17 (XIIIA). It is said that 'any person whose immovable property has been sold' must mean all the owners of the property and not a single co-sharer, and that Abdul Hai being only a co-sharer without the concurrence of the other co-sharers could not take advantage of the rule. We are unable to take this view of the section. It appears to us that the words 'any person whose immovable property has been sold' enable co-sharers of the property which has been sold to apply to the Court to have the sale set aside, and that it is not necessary that all the co-sharers should join in the application. So soon as Abdul Hai made his application and paid the money as required by the Rule, it was in our opinion the duty of the Collector to pass an order setting aside the sale. He ought not, after the deposit was made, to have entertained the application which was made by Izzat Ali. We are confirmed in this view of the section by two decisions of the Calcutta High Court, namely in Net Lall Sahoo v. Sheikh Kareem Bux (1896) I.L.R. 23 Calc. 686 and Paresh Nath Singha v. Nabogopal Chattopadhya (1901) I.L.R. 29 Calc. 1. Whether or not, therefore an appeal lay to the Commissioner, we are of opinion that the Collector acted ultra vires in proceeding to confirm the sale after Abdul Hai had made the deposit and filed an application to have the sale set aside under the provisions of Rule 17 (XIIIA). We therefore dismiss the appeal with costs.