1. The appellant, who purchased the holding of a ryot at a sale held under the provisions of Chapter VI of the Madras Estates Land Act (Madras Act I of 1908) brought this suit to have it declared that the order of the Deputy Collector setting aside the sale for irregularities in the issue of notice, on a motion made by the landholder who brought the holding to sale, was ultra vires and void. The suit was instituted in an ordinary Civil Court. The District Munsif who tried the suit held that as a Judge of a Civil Court he had jurisdiction to entertain it, but that no suit lay in consequence of the provisions of Order 21 Rule 92(3) Civil Procedure Code. The Sub-Judge, who heard the appeal agreed with him on the point that the suit was not maintainable, and held that it was also barred by the rule of res judicata. I have no doubt that they were both wrong on this point.
2. If the Deputy Collector had held a sale of the ryot's property in execution of a decree for rent passed by himself or by some other Collector in a suit instituted under Article 8 of Part A of the Schedule to the Act, the provisions of the Civil Procedure Code relating to the execution of decrees, including Rules 90 and 92 of Order XXI, would by the force of Section 192 of Act I of 1908 have become applicable to this case, so far as Section 132 allowed it. But when summary proceedings are taken for the recovery of rent by the sale of the ryot's interest in the land under the provisions of Section 1ll and the following sections, the Collector has only to follow strictly the specific procedure laid down in the Act for the recovery of arrears without having recourse to a suit. Under that procedure it is not provided that a Collector may set aside a sale on account of irregular-ties. A sale may be postponed under Section 121 or stopped by offering the amount due for arrears under Section 122; but when once it is knocked down, the sale becomes final, and unless the defaulting ryot or some one else interested, deposits the amount of the arrears and the costs of the sale together with 5 per cent of the price within 30 days and so gets the sale set aside under Section 131, it is imperative for the Collector to grant the purchaser a certificate of sale under Section 124. The same was the case under the former Rent Recovery Act (See Section 35 of Act VIII of 1865). There is no provision in either Act for sales being confirmed. Under the former Rent Act it was expressly declared in Section 36 that no irregularity in publishing or conducting a sale of moveable property would vitiate such a sale, but this was not the case with sales of defaulter's holdings although the same rules for conducting such sales were made applicable by Section 40, and it was held in Nathu Achalai Ayyangar v. Partha-sarathi Pillai I.L.R. (1881) Mad. 114 that a suit would lie in the Civil Courts to question the propriety of a sale of immoveable property under the Act and to have it set aside for irregularities. Doraisamy Pillay v. Muthuswamy Moopan I.L.R. (1903) M. 94 was an instance of such a suit brought to a Civil Court.
3. Since the passing of the present Act it has been held that a defaulter can sue in the Civil Courts to have it declared that the sale of his holding was void for fraud or irregularity in the conduct of the sale. See Chidambaram Pillai v. Muthammal I.L.R. (1914) M. 1042 and Gouse Mohideen Sahib v. Muthialu Chettiar (1914) M.W.N. 55.
4. When the prevailing law was that enacted by Act VIII of 1865 a purchaser could have brought a suit such as the present to declare that the Deputy Collector had no power to set aside a sale once completed See Velli Periaya Mira v. Modin Padsha I.L.R. (1886) M. 332 and in this respect too the enactment of Act I of 1908 has not effected any alteration in the law.
5. There being no other substantial objection to the plaintiff succeeding in this suit, the decrees of the lower courts are reversed and the plaintiff will be given a declaratory decree as prayed for with costs throughout from 1st defendant.
6. The lower courts have dismissed the plaintiff's suit as barred by Order 21 Rule 92 Clause (3) C.P.C. (Act V of 1908) and hence this Second Appeal by him.
7. He purchased the 2nd defendant's father's holding at a rent sale held under Section 118 of the Estates Land Act when sold in public auction for arrears of rent due by the latter as a ryot to his landholder, the 1st defendant, who is the proprietor of the South Vallur Estate. The Revenue Inspector who was appointed as the Selling Officer under Section 116 of that Act accepted the plaintiffs bid and knocked down the property to him and received payment of the sale price as provided for in Section 123. No application was made for setting aside the sale under Section 131. Nevertheless the Deputy Collector, acting on a petition put in by the 1st defendant's manager which alleged certain irregularities in the conduct of the sale and consequent loss by the holding being sold for a grossly inadequate price, set aside the sale and directed a resale. A review petition by the plaintiff was rejected after hearing the parties and the original order was confirmed.
8. Plaintiff has brought the present suit to have it declared that his purchase was a valid one and that the order setting it aside and directing a resale was without jurisdiction and null and void and not binding on him.
9. In making his order the Deputy Collector purported to act under Order 21 Rule 90 C.P.C. read with Section 192 of the Estates Land Act. The lower courts have supported this view and it is thus necessary to examine these provisions to see if that view is correct.
10. Section 192, Estates Land Act, no doubt makes Rules 90 and 92 applicable to proceedings under the Act for the corresponding Sections 311, 312 and 314 of the old Code are not excepted sections in Section 192 Clause (a). To decide the question as to what proceedings in particular they apply and whether they apply to the rent sale proceedings before us, we must examine the language of those rules themselves. Now if we turn to Rule 90 we find that it applies only to cases where immoveable property has been sold in execution of a decree; the rule therefore cannot be applied except to such sales, as its language precludes its application to sales in general even though made through court officers. The difficulty in applying this rule to the rent sale before us is that it was not made in execution of any decree at all. An examination of Sections 111 to 134 of the Estates Land Act which deal with such rent sales does not disclose anything in the nature of a decree being passed; there is no adjudication by the Collector of any rights of the parties. Neither the sale of a holding nor that of property distained under Section 96, Estates Land Act can with any justification be held to be a sale in execution of a decree. It seems therefore to be clear that Rule 90 cannot be applied to such sales.
11. It was suggested that this view would nullify the effect of the application of Rule 90 to proceedings under the Estates Land Act. That is not so, because the rule would apply to sales in execution, for example, of rent decrees passed by the Revenue Courts.
12. If Rule 90 does not apply, Rule 92 also cannot apply and the bar pleaded to the present suit under Clause (3) of the latter Section fails.
13. It is conceded that no section of the Estates Land Act taken by itself gives the Deputy Collector power to set aside the sale of a holding for any irregularity, In the case of sale of distrained property Sections 103 and 104 make some provision for ordering a resale for certain irregularities mentioned in the latter section. But no such provision exists in the case of sales of holdings. In fact the language of Section 124 seems to preclude the idea of the sale of a holding being set aside for irregularity, for under Clause (2) thereof the Collector is bound to grant a certificate of sale to the purchaser when the purchase money is paid under Section 123 save in the sole instance of an application under Section 131 having been made and granted. Section 131 deals only with an application to set aside the sale of a holding on payment of the amount specified in the proclamation of sale and costs to the landholder less any amount paid to him subsequently, and 5 per cent of the purchase money to the purchaser; it is similar in character to Rule 89 of Order 21 C.P.C. That section has nothing to do with cases of irregularity in publishing and conducting sales. If we turn to Schedule B to the Estates Land Act which mentions the various applications that can be made under the Act we find that it makes no mention of any application to set aside the sale of a holding for any irregularity the only applications referred to therein in this connection being applications under Sections 114, 131 and 133. See Nos. 18, 19 and 20 of that schedule. It seems therefore that the legislature did not contemplate applications based on irregularities to set aside rent sales of holdings.
14. It cannot be argued that the sale remained incomplete till the Deputy Collector decided whether the bid of the highest bidder should be accepted or not: for under Sections 118 to 123 of the Estates Land Act that duty seems to be cast on the selling officer,
15. It seems therefore impossible to avoid the conclusion that the Deputy Collector had no power to set aside the sale to the plaintiff as he did and his action in doing so was ultra vires, In these circumstances it is conceded that the Civil Court had jurisdiction to give a declaration declaring the invalidity of the order and the validity of the plaintiffs purchase. See Chidambaram Pillai v. Muthammal I.L.R. (1914) M. 1042 where also the order was found to be without jurisdiction. The suggestion that on the above view a person who has suffered loss on account of irregularity or fraud in the conduct of a rent sale of a holding will be left without a suitable remedy is, even if it is correct about which I express no opinion, not one we can take into consideration in deciding the question before us as our decision must depend entirely on the provisions of the law as we find it.
16. It was finally argued that without getting a sale certificate under Section 124 of the Estates Land Act plaintiff is not entitled to a declaration of his title to the land. But that is not the declaration he is claiming. His prayer is to declare that his purchase is valid and that the order setting it aside is invalid. Such a declaration cannot be treated as a futile one as the Revenue authorities will no doubt act according to it when produced to them and give plaintiff a sale certificate and possession of the land as required by Section 124.
17. No objection having been raised in this suit to the validity of the plaintiff's purchase on the merits and it not being explained how plaintiffs suit is barred by limitation though an issue was raised on the point as additional issue No. 5 and the Deputy Collector's order setting aside his purchase being found to be ultra vires, we must give him the declaration he has asked for in the plaint.
18. The decrees of the lower Courts must therefore be reversed and plaintiff's suit decreed as prayed for with costs throughout against the 1st defendant.