B.P. Mookerjee, J.
1. This is a defendants' appeal and is directed against a decree passed by the Additional Subordinate Judge of Hooghly declaring that a sale which had taken place on the 18th October 1944, in a certificate case by the Certificate Officer of Hooghly was without jurisdiction and null and void. It was further declared that the plaintiff's interest in any portion of the disputed property had not been affected. The plaintiff was entitled to recover possession.
2. It is not necessary to refer in detail to the allegations made in the pleadings or to the different issues which were raised. The only question which requires consideration by this Court in the present appeal is whether the plaintiff's suit is barred under Section 37 of the Bengal Public Demands Recovery Act.
3. Allegations were made in the plaint that the sale in question was affected by fraud. The Court below has found against the plaintiff on this point. On the materials in the record that conclusion appears to us to be well founded. No very serious attempt was made to controvert the findings on that issue.
4. On behalf of the defendant-appellant it is contended that if no fraud is found the plaintiff's suit is barred under Section 37 of the Public Demands Recovery Act. The proviso to Section 37 lays down that a suit may be brought in a Civil Court in respect of any question arising between the certificate holder and the certificate debtor or their representatives relating to the making, execution, discharge or satisfaction of a certificate only upon the ground of fraud. In the absence of any fraud being found the plaintiff's suit ought to have been dismissed.
5. To consider this point as taken by the defendants, we need refer to some of the ear-lier decisions of this Court. There is no doubt that if there is a sale under the Act such a sale can be questioned in a Civil Court only upon proof of fraud. If fraud is not proved the special jurisdiction created and the procedure laid down under the Public Demands Recovery Act must be invoked. If, however, the sale is found not to be one under the Public Demands Recovery Act will the bar under Section 37 be still attracted?
6. When the Public Demands Recovery Act created special jurisdiction affecting preexisting powers and jurisdiction of the Civil Court, the provisions contained in that Act are, to be scrutinised keeping in view the well known principles that when the jurisdiction of the Civil Court is attempted to be taken away, such exclusion must be expressed explicitly, or in any view, clearly implied. As was observed In the Secretary of State v. Mask & Co. , even if jurisdiction is excluded the Civil Courts have jurisdiction to examine into the case where the provisions of the Act have not been applied for or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The restrictive clauses in such special legislation will not affect the jurisdiction of the Civil Courts when the special tribunal has overstepped the limits of its jurisdiction in making the order, R. v. South Wales Railway, (1849) 13 QB 988 (B) ; Ex parte Bradlaugh, (1878) 3 QBD 509 (C).
7. These principles have been applied by this Court. In one of the earliest cases. Sir Comer Petheram in Basharutulla v. Uma Churn, ILR 16 Cal 794 (D), applied the same principles when it appeared that a sale which had taken place under Section 287 of the old Code of Civil Procedure (Act XIV of 1882) without mentioning the date, hour and place of the sale in the sale proclamation, it was observed that such omission was not merely an irregularity under Section 311 of the repealed Code. Under Section 311 no separate suit was permissible and the Court held that in the circumstances, there was no sale within the meaning of the Code at all. The proclamation of the time and place of sale and the taking place of the sale at the time and place advertised are conditions precedent to its being sale under the Code at all. His Lord-ship proceeded to observe,
'Under these circumstances, it appears to us that this property never has been sold under the Code and consequently the plaintiff is entitled to a declaration that whatever took place when the property was put up for sale had no effect against him and that he is entitled to recover the property.'
The bar under Section 311 would have been attracted only if there was a sale under the Code. The sale not being one under the Code, the bar was not attracted.
8. In Purna Chandra Chatterjee y. Dina-bandhu Mukherjee, ILR 34 Cal 811 (E), a Full Bench of this Court was called upon to consider the effect of a notice not having been served under Section 10 of the Public Demands Recovers)Act then in force (Bengal Act I of 1895). The Full Bench came to the conclusion that a sale without service of notice under Section 10 was wholly without authority and so a nullity. Accordingly a suit brought to recover possession of the property so sold will be governed under Article 142 and not Article 12 of Schedule II of the Limitation Act (XV of 1877).
9. In Shahzadi Begam v. Fasihuddin Ahmad, 41 Ind Cas 252: (AIR 1917 Pat 411) (F), a Division Bench of the Patna High Court came to the conclusion that when a certificate was issued in the name of a third party whose name was entered in the Collector's books but who had virtually no interest, such a sale did not affect the real owner and the sale was not under the Public Demands Recovery Act.
10. In Reajuddin Dalai v. Shahanutulla Mia, 60 Ind Cas 759 (Cal) (G), the facts were somewhat similar to those as in ILR 16 Cal 794 (D), already referred to. This is one of the earliest cases where the question now before us came up for consideration. A date had been fixed for the sale of the property, but no sale took place on that date. On the 5th September 1913, the Certificate Officer passed the following order,
'Put up for sale, but no bid in Court, Nazir or Naib Nazir to sell locally within the 12th September.'
The sale actually took place on the 12th September. There were no bidders, and the property in suit along with certain other items were sold. A suit brought by the owner was resisted on the ground that there was no question of allegation of fraud and that although the sale was held in contravention of Rule 32 of the Rules to the Public Demands Recovery Act, 1913, the sale must be held to be one under the statute and could be set aside only by the Certificate Officer. Mookerjee, A. C. J., observed.
'The Statute clearly contemplates a public auction, that is to say, an auction where the members of the public will be in a position to offer bids in competition against each other. But if a sale is held, as was held in this case, without date, hour and place previously fixed, it is clearly impossible for the public to attend and to bid. Under such circumstances, we cannot hold that this was a sale as contemplated by the Legislature, the sale was in substance a colourable exercise of the powers conferred on the Certificate Officer by the Statute. A sale of this description cannot be held to be a sale under the Statute, and Section 37 is consequently not a bar to the suit.'
11. Reference was made in this case to Tasadduk Rasul Khan v. Ahmad Husain, 20 Ind App 176 (PC) (H), where a sale had been held before the expiry of thirty days which should have intervened between the publication of the sale proclamation and the actual sale. That was considered by the Judicial Committee to be an irregularity. That case was held to be clearly distinguishable. The other earlier decision referred to Surno Moyee Debi v. Dakhina Ranjan Sanyal, ILR 24 Cal 291 (I), however, cannot be explained away. In that case no hour had been fixed for the sale as required under Section 291 of Act XIV of 1882. That was considered to be a material irregularity as the property had been sold at a very inadequate price by reason of the paucity of bidders. The observations made in the judgment do not support the view that the sale itself was a void one, but merely an irregularity. In view of the various decisions subsequent to the one referred to which reference will be made, the observations in that case should not be taken too literally. The question now before us was not directly raised in that decision.
12. In Pratap Chandra Jana v. Secretary of State, 35 Cal LJ 304; (AIR 1922 Cal 101) (J), Sir Asutosh Mookerjee reiterated the view expressed previously by him in 60 Ind Cas 759 (Cal) (G). When an action of the revenue authorities was wholly unauthorised, constituting a colourable exercise and clearly a flagrant abuse of the provisions of the Statute, Section 37 of the Public Demands Recovery Act would not oust the jurisdiction of the Civil Court to make a declaration or to issue an injunction or otherwise to grant adequate relief.
13. Reliance was placed on the observations of the Judicial Committee in Dhiraj Chandra v. Haridasi Debi, 42 Ind App 58: (AIR 1914 PC 30) (K). In that case notification had been issued under Section 6 of the Bengal Land Revenue Sales Act, 1859, for the sale of certain lands for arrears of land revenue. Subsequently a certificate was filed under the Public Demands Recovery Act for the realisation of arrears of embankment charges under the Bengal Embankment Act, 1882, for portion of the estate. Before the date fixed for the sale, the amount due for the land revenue but not for the embankment charges had been paid and acknowledgment given. The Collector directed the sale to proceed in respect of the embankment charges, but no notification under Section 5 of Act XI of 1859 was issued. The sale accordingly took place upon the date originally fixed. Affirming the decision of the High Court it was declared that the sale was invalid and the latter arrears could not be treated as arrears of land revenue without notification under Section 5 of Act XI of 1859. Reliance was placed on the observations of the Judicial Committee on the ground that on the sale taking place under such circumstances, it was not an irregular sale but an invalid one. The sale was not to be regarded as one held under the Statute concerned.
14. In Lalit Mohan Sen v. Monoranjan, 36 Cal LJ 208: (AIR 1923 Cal 13) (L), notice Tinder Section 10 of the Public Demands Recovery Act (I of 1895) had not been served. The sale was held when the new Public Demands Recovery Act (III of 1913) had come into force. Relying on the Full Bench decision in ILR 34 Cal 811 (E), where it was held that a sale held without service of notice under Section 10 was a nullity, the Court proceeded to treat the sale as one not held under the Act, Section 37 of the Public Demands Recovery Act,therefore, was not treated as bar to the jurisdiction of the Civil Court. It was observed that the bar would be available to a party only when the question relating to the making, execution, discharge or satisfaction of certificate filed under the Act was related to the confirmation or setting aside of a sale held in execution of such a certificate.
15. In 1940 this question came up for consideration in Tikendrajit Ghosh v. Mritunjoy Mondal : AIR1940Cal554 , B. K. Mukherjea, X, (as he then was) clearly enunciated the principles and referred to three of the earlier decisions. If a sale takes place purporting to be under the Public Demands Recovery Act, but on an examination of the circumstances under which the sale had been held, it appears that the sale was held without authority, such a sale must be declared to be void and not to affect the title of any other person. Section 37 of the Public Demands Recovery Act would not be attracted. He expressed the same view as had been expressed in the cases cited above that if some or other of the essential conditions which vested jurisdiction in a special tribunal were absent, the Court or the tribunal holding the same must be taken to have acted without jurisdiction and the sale in question was not to be regarded as one held under the Statute. Section 37 of the Public Demands Recovery Act cannot in such cases be attracted.
16. In the case now before us, the plaintiff had prayed that it might be declared that the sale of the disputed properties on the 18th October 1944, was illegal, without jurisdiction, null and void. There are other prayers, no doubt, asking for relief in the form that the sale be set aside and the certificate cancelled. It was not necessary for the plaintiff to make these alternative or additional claims.
17. What are the defects which are referred to by the plaintiff and have been accepted by the Court below. It appears that a date had been fixed for holding the sale. A sale proclamation was issued on the 6th April 1944, intimating that the sale was to take place on the 2nd July following. The date of sale was subsequently altered to the 3rd October 1944. The copy of the sale proclamation which is in the record (Ex. 17) purporting to have been served indicates that the date of sale was the original one, viz., the 2nd July 1944. The sale proclamation was, no doubt, published, as it appears from Ex. 18, the peon's return, on the 3rd September 1944, It was anomalous, therefore, to notify in the sale proclamation served on the judgment-debtor that the sale was to be held on an anterior date. The date of sale, therefore, as mentioned in the sale proclamation was an impossible one. The sale held subsequently was, therefore, on a date which was not notified, clearly violating the mandatory provisions, which only vested jurisdiction in the Certificate Officer to hold the sale.
18. On behalf of the appellants it had been suggested both in the lower Court as also in this Court that there must have been anothercopy of the sale proclamation which had been served on the judgment-debtors. We had called for the records from the Office of the Certificate Officer which had been brought up during the trial of the present suit in the Court below. The original records, however, were not now available. They could not be traced. The criticism of the learned advocate for the appellants could not, therefore, be substantiated from the records of this case. When the entire record from the Certificate Court was available during the trial, the appellant could have shown - if there were any - another copy of the sale proclamation. That was not done. There is no reason to suspect that the copy of the sale proclamation attached to the peon's report is not the one which faithfully describes the copy which was actually served on the judgment-debtor. We must on the materials before us hold that the sale which was actually held on the 18th October 1944, was not one under the Public Demands Recovery Act. The plaintiff is, therefore, entitled to come to the Civil Court for a declaration that the sale was void and inoperative.
19. The decision made by the trial Court must, therefore, be affirmed and this appeal dismissed with costs, hearing fee eight gold mohars.
20. I agree.