1. In this case a revenue sale was held, in which 1st defendant's land was sold under Revenue Recovery Act (Act II of 1864). A petition under Section 37 A of that Act to set aside the sale was dismissed and also a petition under Section 38(1) of Act II of 1864. These two orders were passed by the Deputy Collector, and his order of confirmation of sale was approved by the District Collector under the powers conferred on him by Section 3 of the Madras Regulation VII of 1828. By this confirmation the order of confirmation under Section 38(3) of Act II of 1864 became final. Later on however, the Board of Revenue directed the Collector to cancel the sale and he cancelled it accordingly. Plaintiff's suit, to set aside this last order and to recover possession of the property purchased by him at the revenue sale has been decreed by the Subordinate Judge. The first objection taken is that under Madras Regulations I and II of 1803 which gave the Board of Revenue power of general superintendence over Collectors, the Board had the power to set aside the sale. When a certain power is given to the Collector by Statute, it is not open to the authority having only general powers of revision over him to direct him to pass a special order contrary to what he had already done. In this case the order cancelling the sale though purporting to be passed by, the Collector was really the order of the Board of Revenue who had no such power under Act II of 1864. We have not been referred to any authority in support of this contention and we cannot accept it.
2. It is next argued that as the District Collector has powers of revision over Assistant Collectors exercising the powers of a Collector, under Madras Regulation VII of 1828, he had under Section 38(3) of Act II of 1864 power to pass the final order cancelling the sale. The order under Section 38(3) of Act II of 1864 was, however, passed in this case by the Deputy Collector, and when his order was confirmed by the District Collector it became a final order passed by the Collector within the meaning of Section 88(3) and neither he nor the District Collector had himself power under the Act to pass any further order. We cannot accept a further contention that the proviso clause of Section 38 gives power to set aside a sale after it has been confirmed under the first part of the section. The power given under that clause is one that must be exercised in lieu of the confirmation of the sale.
3. The third point is that this suit is barred by limitation under Section 59 of Act II of 1864, as it has not been brought within six months of the order complained against. The order setting aside the sale was in effect a review of the previous order confirming the sale and therefore following David Nadar v. Manikka Vachaka Desika Gnana Sambanda Pandara Sannadhi I.L.R. (1909) Mad. 65. we think that Section 59 is inapplicable, for it was an order passed wholly without jurisdiction, and not under any power conferred by the Act. In this view Venkata v. Ghengadu, etc. I.L.R. (1888) Mad. 168 and Raman Naidu v. Bhassoori Sanyasi I.L.R. (1903) Mad. 633 and Iswara Pattar v. Karuppan (1893) 8 M.L.J. 255 can be distinguished.
4. The last argument is that on the merits the sale should have been set aside. The finding of the Subordinate Judge that no substantial injury was proved to be due to the only irregularity in the conduct of the sale, concludes this point.
5. The second appeal is accordingly dismissed with costs of the 1st respondent. The memorandum of objections is dismissed.