Alfred Henry Lionel Leach, C.J.
1. This second appeal has been placed before a Bench for hearing as two judgments of this Court which have bearing on the question of law involved are in conflict. The first was delivered by Venkataramana Rao, J., in Subbarayulu v. Arunachala Nadar : AIR1936Mad465 and the second by Wadsworth, J., in Appanna Sastri v. Raja Sobhanadri : AIR1942Mad84 .
2. Before turning to the law we will state the facts. On the 30th October, 1937, in S.S. No. 82 of 1937 filed in the Court of the Deputy Collector, Kowur, under the provisions of Section 77 of the Madras. Estates Land Act the first defendant obtained a rent decree against a pattadar. By three sale deeds dated the 18th August, 1937, 7th September, 1937 and 29th March, 1938, respectively, the plaintiffs purchased portions of the land covered by the patta. Notice of the sales 'was duly given to the landholder under Section 145(2) of the Act. On the 7th February, 1939, the first defendant applied for execution of the decree but he gave no notice of the application to the plaintiffs. The lands purchased by the plaintiffs from the original pattadar were attached and on the 28th August, 1939, were sold in public auction. The purchaser was the second defendant. The plaintiffs then filed in the Court of the District Munsiff of Kovvur the suit which has given rise to this appeal. They pleaded that the second defendant had bought the lands as their benamidar and that the sale was invalid for want of notice to1 them of the execution proceedings. The defendants averred that the second defendant was their benamidar, that notice to the plaintiffs was not necessary inasmuch as they had knowledge of the execution proceedings and that they were estopped from questioning the validity of the sale as the first plaintiff was present at the auction.
3. The District Munsiff held that the second defendant was the benamidar for the first defendant and that the sale was void for want of notice, but the plaintiffs by their conduct were estopped from questioning its validity. Consequently he dismissed the suit. The plaintiffs appealed to the Subordinate Judge of Ellore. He held that the sale was illegal for want of notice to the plaintiffs and that they were not estopped from questioning the validity of the sale. On these findings he decreed the suit. The defendants have appealed.
4. Sub-section (i) of Section 145 of the Madras Estates Land Act states that whenever a holding or a portion of it is transferred or whenever it devolves by operation of law, the landholder shall, subject to the provisions of the section, be bound to recognise the transfer or devolution and enter into a fresh engagement. Subsection (2) says that where a holding or a portion is transferred by the act of a ryot, the landholder on receiving notice in writing from the transferor and the transferee shall recognise the transfer. As we have already indicated that notice was given before the execution proceedings were instituted.
5. Sub-Section 1 (a) of Section 147 says that all acts and proceedings commenced or had under the Act against the transferor or his co-sharers prior to the giving of the notice under Sub-section (2) of Section 145, in so far as such acts and proceedings affect or purport to affect the land on which the arrear is due, the crops growing thereon and the produce gathered therefrom, shall as against the transferee or co-sharer be as valid and effectual as if such acts and proceedings had been commenced or had against the transferee or co-sharer himself and he had been the defaulter. The section clearly implies that proceedings taken after notice under Sub-section (2) of Section 145 are invalid if notice is not given to the transferee.
6. The plaintiffs' contention that as notice was not given to them of the execution proceedings they are not bound by the sale is supported by the judgment of Venkataramana Rao, J., in Subbarayulu v. Arunachala Madar : AIR1936Mad465 . In that case a holding was sold in 1918 to the plaintiff in execution of a mortgage decree obtained against the registered pattadar. The plaintiff gave notice of his purchase to the landholder under Section 146 of the Madras Estates Land Act by producing the sale certificate before him. The landholder recognised the transfer and thereafter received rents from him. Before the plaintiff had purchased the property the landholder had obtained a rent decree against the registered pattadar. In 1926 he applied for the execution of this decree, giving notice only to the registered pattadar. The plaintiff who had been paying rent to the landholder from 1918 onward, was entirely ignored. It was held that in such circumstances the sale was illegal for want of notice and therefore the plaintiff was not affected by it.
7. The appeal in Subbarayulu v. Arunachala Nadar : AIR1936Mad465 was heard before the passing of the Madras Estates Land (Amendment) Act, 1934, which incorporated in Section 145 the provisions of Section 146, which was consequently omitted from the Act. Mr. Justice Venkataramana Rao said that under Sections 146 and 147 once the transfer had been notified to the landholder either by the notice in writing or by the production of the sale certificate and the transfer had been recognised, the transferee could not be bound by any proceedings commenced thereafter without notice to him. He quoted in support of his interpretation of these sections a passage from the judgment of Oldfield and Ramesam, JJ.,| in Sri Mahant Prayag Dossjee v. Sarangapani Chettiar (1922) 17 L.W. 361, where they said with reference to Section 146:
We read the section as laying down that where there has been a transfer, whether before the commencement of the Act or after, it, the transferee will be entitled to be impleaded in proceedings if he gives the notice which Section 146 prescribes but that until he does so, the existing pattadar will still be the person with whom the landholder has to deal.
8. The facts in Appanna Sastri v. Raja Sobhanadri : AIR1942Mad84 , were these. A landholder obtained decrees in two rent suits. At a sale held in execution of the earlier decree a portion of the holding was purchased by the appellant. He did not produce the sale certificate before the landholder, but he paid the rent to him and was given a receipt showing that it had been paid on his own account. In subsequent years the rent was paid by the appellant's agent, but the receipts wrongly indicated that it was paid on account of the registered pattadar. In 1933, the landholder proceeded to execute the second decree which he had obtained in 1924. Without notice to the appellant he brought the holding to sale and purchased it himself. Subsequently, the landholder ejected the appellant who filed a suit to recover possession. Two contentions were raised in the appeal. One was that the sale was bad for want of notice to the appellant and the other was that the sale was bad because a charge in respect of the arrears which had accrued due after the first decree must be deemed to have been wiped out by the first sale so far as the liability of the portion of the holding sold was concerned.
9. We are here concerned only with the decision on the first question. Mr. Justice Wadsworth rejected the plea of the appellant that the sale was bad for want of notice, because he considered that there was no necessity under Section 117 of the Madras Estates Land Act to give to the defaulter personal notice of a sale in execution of a rent decree. The kind of notice contemplated was by beat of drum in the village and by an affixture in a conspicuous place in the village. If this had been a case of a sale by a sale officer under the orders of the Collector passed under Section 116, we should have agreed with the learned Judge; but the sale was not under that section. A landholder has two remedies against a defaulting tenant. He can, if he wishes, file a suit to recover the arrears of rent under Section 77 of the Act. If the tenant has only defaulted in respect of the current year's revenue the landholder can apply for the sale of the holding under the more summary procedure provided by sections III to 131. Section III says that when an arrear is not paid within the revenue year in which it accrued due, it shall he lawful for the landholder to sell the holding or any part of it in the manner provided in the Act in satisfaction of the arrear and of interest and costs, if any, of the sale. Section 112 states that when the landholder intends to avail himself of the powers given by Section 111 he shall serve upon the defaulter through the Collector a written notice stating the amount due for arrears, interest and costs, if any, the period for which and the holding in respect of which it is due and informing him that if he does not pay the amount or institute a suit before the Collector contesting the right of sale within thirty days from the date of the service of the notice the holding or any part specified in the notice will be sold. When this notice has been served on the tenant the Collector can take action under Section 116 if no suit has been instituted. The section requires the Collector himself to issue notice to all the parties and hear such of them as appear before him. When this has been done it is the duty of the Collector to determine the extent of the land to be sold, the lots if any which shall be sold, the order in which the lots shall be sold and the estimated value of each of them. He shall then order the sale, appoint an officer to conduct it, draw up the proclamation of sale and direct notice of it in the vernacular of the taluq to be posted in his office and in the taluq office. When these formalities have been complied with the selling officer takes charge and conducts the sale.
10. It is quite clear that no further notice is necessary in the case of a sale which has been ordered in accordance with Section 116 but it is quite a different matter to say that no notice shall be given to a transferee when there has been a rent suit and the landholder is proceeding in execution of the decree obtained by him therein. Section 145(2) read with Section 147(1) makes it quite clear that notice is necessary.
11. Where notice is required and is not given, the transferee cannot be affected by anything done behind his back. If the property is sold in such circumstances, the sale is invalid. In Kanchamdai Pathar v. Shahaji Rajah Sahib (1935) 70 M.L.J. 162 : I.L.R. 59 Mad. 461 , a Full Bench Of this Court held that a sale was void and not merely voidable where no notice had been served on the legal representatives of the judgment-debtor in accordance with Order 21, Rule 22(1) of the Code of Civil Procedure. In Raghunath Das v. Sunderdas Khetri (1914) 27 M.L.J. 150 : L.R. 41 IndAp 251 : I.L.R. 42 Cal. 72 , the Privy Council held that a sale in execution which had taken place behind the back of the Official Assignee was void. We consider that the correct view of the law was taken by Venkataramana Rao, J., in Subbarqyulu v. Arunachala Nadar : AIR1936Mad465 , which means that the sale complained of by the plaintiffs must be regarded as a nullity.
12. While not suggesting that the doctrine of estoppel applies in this case Mr. Raghava Rao on behalf of the appellants has contended that the plaintiffs did in effect get notice of the execution proceedings. He bases his contention on the fact that the day before the sale was due to be held the first plaintiff heard that it had been fixed for the next day. The sale was held at the house of the second defendant and the first plaintiff attended at the time appointed. Before doing so, he handed in a petition to the Deputy Collector in which he said that he was the purchaser of the land and asked that if the sale was to take place the upset price should be Rs. 100. At the sale the property was knocked down to the second defendant whose bid was Rs. 110. As he was present at the sale the first plaintiff was asked to sign the list of bidders and this he did. It is suggested that his presence at the sale obviated any necessity for notice of the execution proceedings. We cannot accept this contention. The first plaintiff was not served with notice. At the last moment he heard that the sale was going to take place and he did what he considered best for himself in the circumstances. This certainly did not validate the sale. Mr. Raghava Rao has pressed upon us the decision of the Calcutta High Court in Chandra Math v. Nabadwip Chandra : AIR1931Cal476 , but a perusal of the judgment, makes it obvious that it renders no support to the appellants. There notice was not issued to the judgment-debtors under Order 21, Rule 22 of the Code of Civil Procedure, but notice was issued under Order 21, Rule 66 and in pursuance of that notice they appeared. For two years they contested the right of the decree-holder to bring the property to sale. It was only when their objections were finally overruled that they pleaded the absence of notice under Order 21, Rule 22. While recognising that where a party entitled to notice under Order 21, Rule 22, does not in substance get notice the sale which follows will be without jurisdiction, Rankin, C.J., said on the facts of that case it would be merely piling unreason upon technicality to hold that the sale was not in order. There the judgment-debtors had in effect received notice and had appeared. That is not the case here.
13. For these reasons we dismiss the second appeal with costs.