Alfred Henry Lionel Leach, C.J.
1. The substantial question in this appeal is whether Chinnammal Achi v. Saminatha Malvaroyan I.L.R.(1907) Mad. 367 was rightly decided by this Court. The appellant contends that the decision conflicts with the judgment of the Privy Council in Baijnath Sahai v. Ravngut Singh and therefore cannot be allowed to stand.
2. The appellant instituted a suit in the Court of the District Munsif of Gudivada for a decree setting aside a sale of immovable property which had taken place under the provisions of the Madras Revenue Recovery Act. The allegation was that the fourth defendant had by fraud secured the order for the sale of the property. The sale took place on the 18th July, 1932, and was confirmed by the Deputy Collector on the 28th September, 1932. The appellant discovered the fraud on the 15th November, 1932, and three days later applied to the Collector for an order setting aside the sale. By an order dated the 30th June, 1933, the Collector refused to interfere and consequently on the 18th July, 1933, the appellant filed the present suit. -
3. Section 59 of the Act allows an aggrieved party to apply to the civil Court for redress, subject to the proviso that the suit is instituted within six months 'from the time at which the cause of action arose.' Clause 3 (3) of Madras Regulation 'VII of 1828 gives full power to the Collector to confirm, modify or annul an order passed by a subordinate or assistant and to pass any further order in the case as he may see fit. Parts of the Regulation have been repealed, but this provision is still in force, and it is common ground that it conferred upon the Collector power to confirm or annul the order of sale which was passed by the Deputy Collector on the 18th July, 1932, in respect of the land in suit. The order of the Deputy Collector confirming the sale was passed in pursuance of the authority given to him by Section 38 of the Revenue Recovery Act, which directs confirmation on the expiration of thirty days from the date of the sale, if no application for an order setting aside the sale has been made. If such an application has been filed the question of confirmation of the sale remains in abeyance until the application has been decided. The fact that a Subordinate Collector has confirmed the sale does not, however, prevent an aggrieved party from taking advantage of Clause 3 (3) of the Regulation of 1828 and in case of fraud he has thirty days from the discovery of the fraud in which to apply to the Collector for redress. Section 18 of the Limitation Act specifically provides that where a person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of his right or of the title on which it is founded, the time limited for instituting a suit or making an application shall be computed from the. time when the fraud first became known to him.
4. The District Munsif held that the sale in question was not fraudulent and that the suit was barred by the law of limitation. On appeal the Subordinate Judge of Masulipatam held that fraud had been proved, but he agreed with the District Munsif that the suit was time-barred. The appellant then appealed to this Court. The appeal was heard by Venkataramana Rao, J., who feeling himself bound by the decision in Chinnammal Achi v. Saminatha Malavaroyan I.L.R.(1907) Mad. 367 dismissed it, but granted a certificate under the provisions of Clause 15 of the Letters Patent. In the course of his judgment the learned Judge clearly indicated that in his opinion Chinnammal Achi v. Saminatha Malavaroyan I.L.R.(1907) Mad. 367 conflicts with Baijnath Sahai v. Ramgut Singh but as Chinnammal Achi v. Saminatha Malavaroyan I.L.R.(1907) Mad. 367 had been decided some years after the decision in Baijnath Sahai v. Ramgut Singh he felt that he could not ignore it.
5. In Chinnammal Achi v. Saminatha Malavaroyan I.L.R.(1907) Mad. 367 certain lands were sold on the 10th July, 1901, under the provisions of the Madras Revenue Recovery Act for arrears of revenue. The sale was confirmed by the Head Assistant Collector on the 28th September, 1901. The plaintiffs petitioned the Collector under Regulation VII of 1828 without success, their petition being rejected by an order dated the 10th May, 1902. On the 9th July, 1902, they filed the suit out of which the appeal arose. The appeal was heard by Benson and Miller, JJ., who held that the period of six months allowed for a suit to set aside a sale under Section 59 of the Madras Revenue Recovery Act must be calculated from the date when the sale is confirmed and not from the date when the Collector on revision under Regulation VII of 1828 passes his final order. The learned Judge observed:
In Sabapathi Chetti v. Rangappa Naickan (1902) 13 M.L.J. 225: I.L.R. Mad. 495 it was decided in effect that the sale is incomplete until confirmed, but that case gives no support to the contention that a sale is incomplete until the Collector decides whether or not to revise the order of the Officer confirming the sale.
They did not, however, make any reference to the judgment of the Privy Council in Baijnath Sahai v. Ranigut Singh (1896) L.R. 23 LA. 45 : I.L.R. 23 Cal. 775 (P.C.). Presumably it was not brought to their notice.
6. The appeal in Baijnath Sahai v, Ramgut Singh (1896) L.R. 23 LA. 45: I.L.R. 23 Cal. 775 (P.C.) was from a judgment of the Calcutta High Court and had reference to the provisions of the Public Demands Recovery Act (Bengal Act VII of 1880). In 1882 the Collector sold for arrears of road cess and public work cess lands belonging to the plaintiffs. On the 25th January, 1884 the Commissioner confirmed the sale, but on the 12th August, 1884, the sale was set aside by the Board of Revenue at the instance of the plaintiffs. In 1886 the Board of Revenue had occasion to review its order of the 12th August, 1884 and by an order dated the 21st August, 1886, confirmed the sale. In July, 1887, the plaintiffs instituted their suit and the question was whether it had been filed in time. The Judicial Committee held that it was in time as the cause of action did not arise until the Board of Revenue passed its order of the 21st August, 1886, confirming the sale. Lord Davey in delivering 'the judgment of the Board said:
Their Lordships are of opinion that there was no final, conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of the 25th January, 1884, became definitive and operative by the final judgment of the Board of Revenue on the 21st August, 1886, or (in other words) that for the purpose of the law of limitation there was no final or definitive confirmation of the sale until that date.
* * *
In fact, their Lordships are of opinion that there was not during the period which had elapsed between the date of the sale and the 21st of August, 1886, any sale to set aside which a suit could have been brought by the present appellant and respondents. Therefore their Lordships are of opinion that the confirmation dates only from August, 1886, and that the law of limitation is not a defence to this action.
Their Lordships here indicate in words which leave no room for doubt that until the final order has been passed no suit lies, which means that time only begins to run from the date of the passing of the final order.
7. The decision in Chinnammal Achi v. Saminatha Malavaroyan I.L.R.(1907) Mad. 367 undoubtedly conflicts with the judgment of the Judicial Committee in the case just referred to and therefore cannot be allowed to stand. It is also in conflict with the decision of this Court in Muthu Korakkai Chetty v. Madar Ammal (1919) 38 M.L.J. 1 : I.L.R. Mad. 185 (F.B.) which was decided by a Full Bench of five Judges. There a Court sale was confirmed without opposition on the 26th April, 1913, but on the 3rd January, 1914, an application for an order setting aside the sale was filed, fraud being alleged. The sale was set aside on the 25th June, 1915, as to part of the properties sold. On the 17th February, 1917, the auction purchaser applied for delivery of the remaining properties. The Full Bench held that the application was not barred under Article 180 of the Limitation Act as time should be computed from the date of the order disallowing the petition asking for the setting aside of the sale and not from the date of the first order of confirmation. Article 180 fixes the period of limitation for an application by a purchaser of immovable property at a sale in execution of a decree for delivery of possession at three years from the date when the sale becomes absolute, and it was held that the sale did not become absolute until the application for an order setting it aside had been dismissed.
8. We consider that the present case is governed by the decision of the Privy Council in Baijnath Sahai v. Ramgut Singh . The appellant filed his application to the Collector under Clause 3 of Regulation VII of 1828 in time and until that application had been decided the sale was not finally confirmed. The result is that the appeal will be allowed and the appellant's suit decreed with costs throughout.