1. I think it is beyond doubt that what was sold in this case was land of the defaulter within the meaning of Act II of 1864, and the question is why should not the provisions of Section 42 be applied to the sale.
2. The learned vakil for the first respondent with the aid of an ingenious piecing together of dicta to be found in Secretary of State for India v. Narayanan I.L.R. (1885) Mad. 130, Narayana Raja v. Ramachandra Raja I.L.R. (1903) Mad 521 and Ramachandra v. Pilchikanni I.L.R. (1884) Mad. 434, presents for our acceptance the conclusion that the sale is not free of encumbrances because the land sold is not by Section 2 made security for the public revenue for which it was sold. His construction of Section 2 is not established by any of the cases, and I am not prepared to decide that it is correct, but assuming its correctness I cannot sea how the plain words of Section 42 are to be limited by reference to Section 2. A sale may be free of encumbrances whether or not it is held to enforce, a first charge the liens being all transferred to the proceeds. In Ramachandra v. Pitchikanni I.L.R. (1884) Mad. 434 the learned judges no doubt observe that the intention is clear that the purchase is free of prior encumbrances only when the arrear is of public revenue of which, the land is the first security by statutory declaration, but there is nothing to suggest that they construed Section 2 in the way we are asked to construe it: they were not dealing with that question, and their dictum was intended to support their view that a sale for an arrear of revenue due under a different statute is not by virtue of Section 42 of Act II of 1864 free of encumbrances. I venture to think that if they are right as to the intention of the legislature we must construe Section 2 as declaring all the land of a landholder to be security for all the land revenue payable by him, for the intention as expressed in auction 42 is to my mind very plain; every sale of land conducted Under the Act is to be free of encumbrances. The sale in question is a sale of land under the Act and would therefore allow the appeal and dismiss the suit with costs of the first defendant throughout.
3. The third defendant held lands in Kalidindi under one patta, and lands in Sana Rudravaram under another patta. All these lands were mortgaged to the plaintiff. Arrears of revenue having, subsequent to the mortgage, accrued on the lands in Kalidindi, those lands were attached and sold at auction by the Revenue authorities, and, as the proceeds did not cover the whole of the arrears due, the lands in Sana Rudravaram were attached and sold for the balance and were purchased by the second defendant. The plaintiff then brought the suit, out of which this second appeal arises, to have the revenue sale of the Sana Rudravaram lands set aside, and also for a declaration that the lands remained subject to his mortgage. The District Munsif refused to set aside the sale but gave a declaration that the sale was subject to the plaintiff's mortgage. This decree was confirmed by the Subordinate Judge on appeal. The present second appeal is by the Secretary of State for India in Council, and questions the propriety of the above declaration.
4. The villages of Kalidindi and Sana Rudravaram are in the same district. Act I of 1890 has therefore no application, and the point at issue must be decided solely in accordance with the provisions of Madras Act II of 1864. Under Section 5 of that Act an arrear of revenue may be recovered by the sale of the defaulter's moveable and immoveable property and also by execution against the defaulter's person. There is nothing in the section to restrict the land that may be sold thereunder to the land on which the arrear of revenue has accrued. It is clear therefore that for the arrear which accrued on the third defendant's land in Kalidindi, the lands included in his Sana Rudravaram patta were liable to be sold if in the eye of the law they were his property at the time of the sale. The only ground on which it is suggested that they were not his property is the fact thai; they had been mortgaged to the plaintiff prior to the sale.
5. Section 42 of Act II of 1864 provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances, From this it is clear that land may be sold for arrears of revenue, notwithstanding the fact that the defaulter has created an encumbrance upon it, and as under Section 5 it is only land belonging to the defaulter that can be sold for an arrear due by him, it follows that under the Act land which a defaulter has encumbered is considered to be none the less his property, The third defendant's land in Sana Rudravaram was therefore liable to be sold for the Kalidindi arrears, and under Section 42 of Act II of 1864 the sale must be considered to have been free of the plaintiff's mortgage. It is contended that the result is inconsistent with the provisions of Section 2 of the Act. The section lays down that the land, among other things, shall be regarded as the security for the public revenue. This language does not necessitate our reading the section as meaning that any particular land is security for the public revenue only in so fur as that revenue is assessed upon itself. The Courts below relied upon Narayana Raja v. Ramaohandra Raja I.L.R. (1903) Mad. 521. That ease is not however on all fours with the present case, for there it was held that owing to a prior Civil Court sale the defaulter had no interest in the land at the time of the revenue sale. I would therefore reverse the decrees of the Courts below and dismiss the suit with costs of the first defendant throughout.