1. In appeal it is contended before us that the present suit is not barred, because the sale sought to be set aside was null and void. This contention is based upon three grounds : first, that there were no arrears due at all; secondly, that no notice was served upon the plaintiffs as is required by the provisions of Bangal Act VII of 1880; and, thirdly, that the provisions of Section 290 of the Civil Procedure Code were infringed, inasmuch as the auction-sale was held before the expiration of thirty days, calculated from the date on which the copy of the proclamation had been fixed up in the Court-house of the Collector, who in this case acted as the Judge ordering the sale.
2. We are of opinion that this contention is valid, and that the Subordinate Judge was not right in dismissing the suit, upon a preliminary point, 'without taking evidence. We shall state hereafter the grounds upon which our decision is founded. But as the defendants have taken another preliminary objection in bar of the suit, it will be convenient to dispose of it here.
3. It was contended by the defendants in the lower Court that, as no suit was brought by the plaintiff within one year from the date of the service of notice upon them, the certificate issued against them became absolute and acquired the force and effect of a final decree of a Civil Court under Section 8 of Bangal Act VII of 1880. This contention cannot stand, because, in considering this preliminary point before taking any evidence at all in the case, we must assume the facts stated in the plaint to be correct. One of these facts is, that no notice was served upon the plaintiff under Section 10 of the Act. Section 8, Clause (b) provides that the judgment-debtor may, at any time, within on a year after the service upon him of such notice as is mentioned in Section 10, bring a suit in the Civil Court to contest his liability. Section 10 requires a notice to be served upon the judgment-debtor with a copy of the certificate issued. It further provides that, from and after the service of such notice, such certificate shall bind all immoveable property of such judgment-debtor situate within the jurisdiction of such Cellector, in the same manner and with like effect as if such immoveable property had bean attached under the provisions of Section 274 of the Code of Civil Procedure. Then to come back again to Section 8, it lays down that, if no such suit is instituted within the said period of one year, or if any such suit having been institured is decided against such judgment-debtor, such certificate shall become absolute, and shall have to all intents and purposes the same force and effect as a final decree of a Civil-Court.
4. It is clear to us from these provisions that, unless the notice required by Section 10 is actually served, the provision in Section 8, as to the certificate becoming absolute and acquiring the force and effect of a final decree of a Civil Court; does not come into operation. Consequently the contention of the defendants upon this point cannot prevail, until the question raised in the plaint, namely, whether or not the notice required by Section 10 was served upon the plaintiffs, is decided against them. Then, again, supposing that the notice was served, the certificate issued in this case would then by efflux of time have the effect of a final decree. But even in that case if the plaintiffs establish the third ground set forth above, they would be entitled to have the sale set aside, because that ground has nothing to do with the validity or otherwise of the certificate issued in this case.
5. That the non-service of notice required by Section 10 is an irregularity in the Collector's proceedings, which the Civil Court has the power of taking, cognizance of in deciding the question, whether such certificate should be held to bind the judgment-debtor, was decided by this Court in Hem Lotto v. Sreedhone Borooa 3 C. 771.
6. Having disposed of this, preliminary ground, we shall now deal with the grounds upon which the decision of the lower Court is founded. We shall take up, first, the question whether the present suit is barred by the provisions of Section 312 of the Civil Procedure Code. The sale in question in this case was confirmed by the Collector under a rubokari, dated the 15th September 1882. The Collector confirmed the sale under Section 312 of the Civil Procedure Code. One of the questions we have to decide in this case is whether that section is applicable at all.
7. Supposing that there are material irregularities in publishing or conducting a sale held in execution of a certificate issued under Bengal Act VII of 1880, and supposing such irregularities have caused substantial injury to the owner of the property sold, what are his remedies Is he entitled to proceed under Section 311 of the Civil Procedure Code, or Section 2, Bengal Act VII of 1868 by way of appeal to the Revenue Commissioner against such sale Or is he entitled to pursue both these remedies There is no express provision in Act VII of 1880, or the cognate Acts, that the judgment-debtor in a case like this would be entitled to pursue both remedies. It would also create very great confusion, and might result in conflicting orders of concurrent Courts if it were held that both these remedies were open to him. Section 19 of Bengal Act VII of 1880 says-that all the practice and procedure provided by the said Code of Civil Procedure in respect of sales in execution of decree, &c;, &c;, shall apply to every execution issued to enforce a certificate. It seems to us that the words 'in respect of sales in execution of decrees,' do not include any proceedings instituted after the sale for setting it aside. We think, therefore, that only the provisions of the Procedure Code up to the stage on which the auction-sale is held apply to an execution issued to enforce a certificate and therefore the provisions of Sections 311 and 312 are not applicable. Section 312 is therefore no bar to the present suit; but even if Section 312 were Applicable, the plaintiffs would be entitled to succeed if they establish that the sale in question was wholly null and void.
8. We are of opinion that the only remedy of a judgment-debtor whose property has been sold in execution of a certificate issued under Bengal Act VII of 1880, and who has sustained substantial injury by reason of a material irregularity in publishing or conducting the sale, is by way of an appeal under Section 2 of Bengal Act VII of 1868. This view has been taken by the lower Court, and we concur in it. But we do not think that the ground upon which this conclusion of the lower Court is based is the correct ground upon which it should be based ; because the words, 'not being a sale made under and by virtue of any execution issued upon a certificate made as hereinafter provided,' in Section 2, Bengal Act VII of 1868, having been repetaled by Act VII of 1880, it does not necessarily follow that the Legislature intended that an appeal should lie to the Commissioner of Revenue against a sale held under Act VII of 1880, in execution issued to enforce a certificate. It may be treasonably held that those words were repealed, because all the provisions regarding a sale under an execution issued upon a certificate contained in the subsequent part of Act VII of 1868, were also repealed by Bangal Act VII of 1880. But we think that, by the force of Section 2 of Act VII of 1880, the provisions in Section 2,. Bengal Act VII of 1868 became applicable to a sale under an execution issued upon a certificate made under Act VII of 1880. Section 2 of Bengal Act VII of 1880 is to the following effect: 'This Act, so far as is consistent with the tenor thereof, shall be construed as one with Act XI of 1859, passed by the Governor-General in Council, and Act VII of 1868 passed by the Lieutenant-Governor of Bengal in Council. The powers given by this Act shall be deemed to be in addition to, and not in derogation of, any powers conferred by any Act now being in force for the recovery of any due debt or demand to which the provisions of this Act are applicable.' The effect of this Section is, that Act XI of 1859 and Act VII of 1868 and Act VII of 1880 are to be considered as if the provisions contained in them were contained in one Act so far as such construction is consistent with the tenor of the last mentioned Act. That being so. the sale in this case may be considered as a sale under Act VII of 1868 within Section 2 of that Act. The appeal under that section against the sale, therefore, lies to the Revenue Commissioner. Similarly all sales under Act VII of 1880 would become final in the manner and at the time provided in Section 27 of Act XI of 1859. But it; is doubtful whether Section 33 of Act XI of 1859 is applicable to the present case. That section says : 'No sale for arrears of revenue or other demands realizable in the same manner as arrears of revenue are realizable, etc.' There is no provision in any Act or Regulation that we are aware of by which a demand for road and public cesses is realizable in the same manner as arrears of revenue are realizable. But it is not necessary for us to express any decided opinion upon this point in the view which we take of this case. We think that, if the three grounds which are taken before us are established, Section 33 of Act XI of 1859 would be no bar to the plaintiffs' success even if it be conceded that it is applicable to the present suit. If these grounds are established, the sale in question would, in our opinion, be deemed null and void, and according to the ruling of the majority of the Judges of the Full 'Bench in Lala Mobaruk Singh v. The Secretary of State for India 11 C. 200, Section 33, Act XI of 1859 cannot be set up as :a bar to a suit of this nature.
9. As regards the third ground taken before us, it is alleged in the fourth paragraph of the plaint that a copy of the sale proclamation was fixed upon the Court-house of the Collector on the 18th of August 1881, and the sale took place on the 16th September 1881. If these facts are substantiated, then it is quite dear that the provisions of Section 290 of the Civil Procedure Code were infringed, and such an infringement is not a mere irregularity, but it vitiates the sale--Bakshi Nand Kishore v. Malak Chand 7 A. 289.
10. Then as regards the first ground, it is true that there is no clear allegation in the plaint that there were no arrears due at all. But it seems to us that the facts stated in it are consistent with a case based upon an allegation of this nature. But this issue, in our opinion, ought not to be raised until the plaintiffs amend their plaint and insert therein a clear allegation to than effect.
11. There remains to notice only one other point which was raised before us. It was contended that the sale in this case was bad, inasmuch as the provisions of Bengal Act VII of 1880 are wholly inapplicable to the present case. It is said that under Section 98 of Act IX of 1880, arrears of road and public cesses are not realizable under Bengal Act VII of 1880, Section 98, Bengal Act VII of 1880, is to the following effect. 'Every amount due, or which may become due, to any Collector, under the provisions of this Act in respect of any arrears of cess, of any expenses, incurred, of any fee or costs payable, of any notices served, of any fines imposed or on any other account, may be realized by such Collector by any process provided by any law for the time being in force for the realization of public demands, and shall be deemed to be a public demand under such law.' It is contended before us that, as there is no Act or Regulation in force for the realization of public demands generally, this provision has no operation. It is true that the preamble of Act VII of 1880 and the beading of it describe the Act as an Act to amend the law for the recovery of certain public demands, but Section 1 says that this Act may be called (The Public Demands Recovery Act, 1880). It seems to us that by the words 'any law for the time being in force for the realization of public-demands' used in Section 98, Act IX of 1880, the Legislature referred to Act VII of 1880. It was not an Act for the recovery of certain public demands, but it was an Act for the recovery of all kinds of public demands. The heading and the preamble indicate that it was enacted for amending the law for the recovery of certain public demands. But the Act itself is an Act for the recovery of all kinds of public demands. We are, therefore of opinion that this contention cannot succeed.
12. The result is that the decree of the lower Court will be set aside, and the case will be remanded to that Court to decide it in accordance with the remarks contained in this judgment. Costs will abide the result.