1. This is an appeal by the plaintiffs arising out of a suit for a declaration. The Court of first instance decreed the suit but the lower appellate Court dismissed it.
2. It appears that the defendant Ram Prasad obtained a simple money decree against the father of the plaintiff-appellants. In execution of that decree he attached some zamindari property belonging to the judgment-debtors. The property being ancestral, proceedings for execution of decree were before the Collector. It was sold for Rs. 3,000 which was the last bid of the decree-holder himself. He had an incumbrance on the property which was; Sold. Apparently there was a misapprehension in the mind of the decree-holder who thought that the sum of Rs. 3,000, offered by him, would include the incumbrance. Subsequently the sale had to be set aside, because the decree-holder did not deposit the one-fourth of the amount of bid, as he should have done under the law. The Assistant Collector returned the papers to the civil Court, at whose instance the property had been sold. The civil Court was moved by the judgment-debtors to pass an order directing resale of the property and recovery of the difference from the decree-holder-auction-purchaser. Accordingly, the Subordinate Judge ordered, on 30th March 1928, that the property be refold and the deficiency, if any, be realised from the decree-holder. We do not pause to consider whether the order of the Subordinate Judge was legal or otherwise. A re-sale took place on 20th September 1928, and the property was sold for Rs. 350. It cannot be disputed that the second proceeding of sale was perfectly in order and that there was no want of jurisdiction in the officer conducting the sale. As already stated, the property was sold for Rs. 350. The decree-holder was directed to pay the difference of Rupees 2.650. He however moved the Collector and obtained an order on 14th June 1929 exempting him from the liability to pay the aforesaid difference,. This order was passed behind the back of the judgment-debtors, who in turn moved the Collector who reconsidered his order of 14th June 1929 and passed another on 26th July 1929 directing that the decree-holder should make good the deficiency. From this order, which should be considered to be an order reviewing his first order of 14th June 1929, an appeal was preferred to the Commissioner, who held that the decree-holder should not be required to pay the deficiency of Rs. 2,650. In effect he reversed the order of the Collector dated 26th July 1929. The present suit was brought by the judgment-debtor for a declaration that the Commissioner's order was without jurisdiction and therefore void and ineffective.
3. It is contended before us that the Commissioner's order, which was passed on 31st January 1930, and has already been referred to, was void. The declaration which the plaintiffs seek is to the effect that the order is null and void. The invalidity of the order is said to have arisen from the fact that the Commissioner had no jurisdiction. It is argued that the Assistant Collector's order, dated 3rd November 1927, which directed that the papers be returned to the civil Court, mentioned the fact that the decree-holder was liable to make good the deficiency and that that order became final. We do not think that this contention can prevail. It was a remark made in passing. The operative part of the order was merely to the effect that the papers be returned to the civil Court. As a matter of fact no resale had taken place till then, and no question of any deficiency had actually arisen. It arose after the re-sale.
4. The Collector's first order that the decree-holder should not pay the deficiency was over-ruled by Ms subsequent order. It was open to the decree-holder to challenge the order of the Collector, so far as it was unfavourable to him in appeal to the Commissioner. Para. 1011 of the Revenue Manual distinctly provides that any order passed by the Collector can be impugned in appeal before the Commissioner on the ground of illegality or material irregularity. It should be noted that the order which the Collector passed and which was appealed against to the Commissioner, was not one in appeal from any order of the Assistant Collector. It appears that the re-sale was made by the Collector and not by the Assistant Collector, as in case of the first sale. The appeal being thus competent, the Commissioner had every jurisdiction to reverse the latter order of the Collector. The learned advocate for the appellants criticized the order of the Commissioner on its merits. We do not think that it is open to the appellants to impugn the correctness of the Commissioner's order. If he had the jurisdiction to pass that order, as we hold he had, that order is final and cannot be questioned by this Court. We think that the order of the lower appellate Court dismissing the plaintiffs' suit is correct. The appeal is accordingly dismissed with costs.