B.K. Mukherjea, J.
1. The facts giving rise to this appeal may be shortly stated as follows : There is a revenue paying estate bearing touzi No. 395 of the Alipore Collectorate which is owned jointly by several cosharers. A number of separate accounts were opened in respect of the shares under the provisions of the Revenue Sale Laws, and we are concerned only with one of these separate accounts which is S.A. 395/3. The owners of this separate account having made default in the payment of revenue, due in respect of the same, this share was put up to sale under Section 13, Act 11 of 1859 on 23rd September 1935. No bids were received on that date, and the Collector in exercise of his powers under Section 14 of the Act stopped the sale, and made a declaration that the entire estate would be sold, unless the other recorded sharer or sharers of the touzi would purchase the separate account, by paying the entire arrears due in respect of the same, within ten days from that date. Several cosharers now came forward, and each one of them deposited the entire arrears due in respect of the separate account, which amounted to Rs. 482.
2. The plaintiff paid the money on 25th September 1935. Another cosharer named Butto Kristo, who is defendant 3 paid the said sum on the day following, and lastly on 14th October 1935, Hemendra and Gouribala, who are defendants 1 and 2, each deposited in the Oollectorate the sum of Rs. 482 by separate chalans. It may be stated here that the puja holidays set in before the expiry of the ten days, within which the arrears were to be paid, and the office re-opened on 14th October 1935, on which day the payments were made by defendant 1 and 2. The Collector by his order dated 17th October 1935, declared all the four persons to be purchasers of separate account 395/3 in equal shares, and the certificate of purchase was issued accordingly. The balance of the deposits made by all these four persons was directed to be refunded. The matter was then taken before the Commissioner, who affirmed the order of the Collector. The plaintiff whose deposit was earliest in point of time now commenced this suit, and he prayed for a declaration that he was the full 16 annas purchaser of the separate account under Section 14 of the Revenue Sale Law, and that the defendants could not be given any shares in respect of the same. There was also a prayer for a permanent injunction restraining the defendants from taking possession of the property in accordance with the order of the Collector. Gouribala, defendant 2, was alleged to have transferred her interest to one Devendra who was made defendant 4 in this suit. The suit was resisted by defendants 1 and 4. Their contentions were mainly of a twofold character. The first contention was that the order of the Collector was right and the plaintiff by making the deposit earlier could not obtain any preferential title. It was said that all the recorded sharers, who deposited the money within 10 days from the date of the declaration, would be entitled to rank as purchasers under Section 14 of Act 11 of 1859. The second contention was that the plaintiff's suit was barred under Section 33 of the Revenue Sale Law.
3. The trial Court was of opinion that the payments made by Hemendra and Gouribala, were ineffectual, inasmuch as they were made after the period of ten days had expired, and it held that the intervening of the puja vacation could not give them an extension of time on the analogy of Section 4, Limitation Act. The only payments that were made within time were those of the plaintiff and Butto Kristo, and as between them, the plaintiff's deposit was earlier, he was entitled to be declared the purchaser of the entire separate account. In this view of the case the Munsif decreed the plaintiff's suit. There was an appeal takes against this decision, by defendants 1 and 4 to the Court of Appeal below, and the Additional Subordinate Judge who heard the appeal reversed the judgment of the this Court and dismissed the plaintiff's suit. The Subordinate Judge concurred in the view taken by the Munsif that as soon as the plaintiff made his payment, the purchase was complete and as there was nothing left for anyone else to buy the Collector was bound to recognize the plaintiff as the sole purchaser of the separate account. But he held nevertheless that the plaintiff could not succeed in the suit, which was one under Section 33 of the Revenue Sale Law as he had not fulfilled the conditions of that Section. What the Subordinate Judge said is this : that in order that a Civil Court might annul a sale under Section 33, Revenue Sale Law, it was necessary to establish that the plaintiff had sustained substantial injury by reason of the irregularity complained of, and the question of injury must have been taken specifically before the Commissioner in an appeal. As no such point was raised before the Commissioner, the suit was not maintainable under Section 33, Revenue Sale Law.
4. The propriety of this view has been challenged by Mr. Bose who appears on behalf of the appellant. Mr. Sen who appears for the respondent has besides inviting us to uphold the view of the Subordinate Judge attempted to support his decision on the ground that the plaintiff was not entitled to any preferential right by reason of his earlier deposit, and that the cosharers who deposited the full amount of arrears within 10 days were entitled to be recognized as joint purchaser of the separate account. On the question as to whether Section 33, Act 11 of 1859 is a bar to the present suit, I am of the opinion that the view taken by the Subordinate Judge is wrong. First of all it is difficult to say that the present suit at all comes within the purview of Section 33 of the Revenue Sale Law. It may be assumed, as was held by the majority of Judges in 21 Cal 844,1 that Section 33 of Act 11 of 1859 is not confined to sales by public auction under the Act, but also applies to a sale under Section 14 of the Act. But in order to attract the operation of Section 33 the suit must be one to annul the sale and this presupposes that the party suing is the defaulting cosharer or any other person who derives his title from him. In Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 the plaintiff was the defaulting cosharer himself, whose application for exemption of his separate account from sale was refused and the share was put up to sale under Section 14 of the Revenue Sale Law. Here the plaintiff does not want the sale to be set aside. He indeed impeaches the rights of the defendants to become purchasers by reason of the subsequent deposits they made, but he wants at the same time that the sale should stand and stand entirely in his favour. It is really a suit by one purchaser against another for a declaration that he has a preferential title. If the plaintiff's contention is right that as soon as he paid the money he became the purchaser, there was nothing left which the defendants could buy, and the order of the Collector declaring them to be joint purchasers would be one without jurisdiction. Under these circumstances a suit would certainly lie in a Civil Court, quite apart from Section 33 of Act 11 of 1859, for having a declaration that the plaintiff, is the sole purchaser, and no title was vested, in any of the other cosharers by reason of the payments they made, under Section 14 of the Revenue Sale Law. I am not unmindful of the fact that a contrary view has been taken by Coxe and Imam JJ. in Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735 and it was held under somewhat similar circumstances that the suit would be governed by Section 33 of Act 11 of 1859. With all respect to, the learned Judges, I regret that I cannot accept their view as correct. Even if in that case, the claim of the plaintiff amounted to, a virtual annulment of the sale in favour of the plaintiff in the suit yet the learned Judges overlooked the fact that the plaintiff in that suit was not the defaulting co-owner and what he demanded was not merely that the sale in favour of the defendant should stand cancelled, but that his own title as purchaser should be declared.
5. This declaration the Court cannot obviously grant under Section 33 of the Revenue Sale Law. It seems to me that the learned Judges misapplied the decision in Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 to the case before them, although the facts of the earlier case were quite dissimilar, the suit being instituted there by the defaulting cosharer himself whose separate account was sold under Section 14 of the Act. Even if the suit is regarded as one coming within Section 33 of the Act, 11 of 1859, I do not think that the decision of the Courts of appeal below is correct. In this case the plaintiff's complaint is that the sale has been held in contravention of the provisions of Section 14 of the Revenue Sale Law, and this very point was declared and specified in the appeal before the Commissioner. It is certainly incumbent upon the plaintiff to establish that he has sustained substantial injury by reason of the irregularity complained of, but it is not necessary, as the lower Appellate Court thinks, that the question of substantial injury must also be made a specific ground of appeal before the Commissioner. Mr. Gunada Charan Sen who appears for the respondent has fairly conceded that the Subordinate Judge was wrong on this point. He says however that there is neither any allegation nor any proof adduced by the plaintiff that he has sustained substantial injury. In the plaint there is a definite statement that the plaintiff will suffer irreparable injury if the order of the Collector stands. Section 14, Revenue Sale Law, gives the cosharer purchaser rights of an exceptional character. He gets a property which may be of considerable value for a trifling amount without any competition whatsoever. In this case the annual revenue payable in respect of S.A. 395/3 is said to be over Rs. 1800 and the purchase was for Rs. 482 only. In these circumstances there would be no question that the plaintiff would suffer loss if the sale in favour of all the four persons is allowed to stand. I am of the opinion therefore that the decision of the Subordinate Judge cannot be supported on the ground that the suit was not maintainable under Section 33 of Act 11 of 1859.
6. There remains now for our consideration the other question raised by Mr. Sen, as to whether the plaintiff can be held to be the sole purchaser of the separate account by reason of his paying the arrears of revenue earlier than the other sharers. The question is not free from difficulty and the Section itself is not quite clear on this point. When separate accounts are opened in respect of separate shares of a touzi and there is default in payment of Government revenue, Section 13 of the Revenue Sale Law provides that the share in respect of which the default has occurred will be put up to sale first. If however the highest offer made at the sale does not equal the amount of arrears due, then the whole estate becomes liable to be exposed to sale. Section 14 here introduces a provision the object of which obviously is to give the other cosharers a chance of saving the estate by purchasing the share in arrears. The Collector, when he finds, that the sale of the separate share did not receive sufficient bids, is to stop the sale and issue a declaration that the entire estate would be put up to sale at a future date unless the recorded sharer or sharers shall within 10 days purchase the separate account in arrears by paying to Government the whole arrears due from such share. The declaration, it seems to me is in the nature of an offer, inviting the recorded sharers to come and purchase the separate account by paying only the arrears due, and the offer remains open for ten days only, after which the separate accounts are closed and the whole estate is notified for sale. The question arises as to what would happen if more than one recorded cosharer pays the whole amount of arrears within the specified period. If there is a joint payment by more than one cosharer, no difficulty arises, and they will certainly rank as joint purchasers. The same thing will also happen if payments are made by several cosharers each of the whole amount but at one and the same time. But when one sharer has paid the entire arrears due I do not think that any other sharer or sharers by subsequently paying the money, even within ten days could rank as co-purchasers with him. According to the Section the purchase is to be made by paying the arrears due. As soon as the full amount of arrears is paid by one sharer, the offer made by the Collector must be deemed to be accepted, and the purchase becomes complete. That the subsequent payments were also made by recorded sharers within ten days cannot in my opinion affect the position. The period of ten days laid down in the Section prescribes the limit of time after which no payments could be received. But as soon as one payment is made within time which wipes out the arrears, the sale is complete, and no subsequent payment of the same amount by any other cosharer can make him a purchaser of the share. On this point I think that the decision in Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735 referred to above, is perfectly correct. 'It seems to me,' thus observes Cox J.,
that the Section was intended merely to give cosharers a chance of saving the estate and to secure the payment of revenue, and was not at all intended to define the rights of the cosharers inter se.... As soon as the payment is made the purchase is complete and there is nothing left for anyone else to buy.
7. Mr. Sen has referred us to the decision in Debi Prosad v. Mt. Aklo Koer (1900) 4 C.W.N. 465. In that case each of the three cosharers, had paid the entire amount of arrears separately, and the Collector issued a certificate of sale jointly to them. The only question raised was as to whether the sharers were to get equal shares in the separate account sold, or their interests would be in proportion to their shares in the parent estate. This Court held that the presumption would be that the Collector took from each of the funds an equal share, and consequently they would have equal shares in the property. The particular question which has arisen here was not mooted in that case at all, and we do not know whether the payments were made there by all the cosharers simultaneously, or at different times. I cannot accept the argument of Mr. Sen that a sale under Section 14 is really made by the Collector after [the period of ten days has expired, and after all the moneys are put in. The sale as I have said already, is effected by the first payment of the entire arrears. Of course this fact has to be ascertained by the Collector and he is to issue a certificate of sale after ascertaining who the purchaser is. Mr. Sen has also argued that numerous practical difficulties would arise if this view is taken; for, in many cases, it would be impossible to find out which deposit is earlier. I do not think that there is much substance in this contention. If there are no materials, upon which the Collector can find as to whether one payment is earlier than the other, the obvious course would be to regard these payments as simultaneous, and declare both of them as to be joint purchasers. In the present case however, it is not disputed that the plaintiff's payment was earliest in point of time, and in these circumstances I must hold that he is entitled to a declaration of his title to the 16 annas share of the separate account sold. The result is that this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored. The plaintiff will be entitled to his costs against the contesting. defendants in all the Courts.
8. This litigation arises out of a sale under the provisions of Section 14, Land Revenue Sales Act, 1859. Separate account No. 3 of estate No. 395 of the Alipore Collectorate was after the usual preliminaries put up for sale by the Collector on 23rd September 1935, and there being no bidder, he proceeded under Section 14, stopping the same and declaring that the entire estate would be put up for sale unless (in the words of the Section)
the other recorded sharer or sharers, or one or more of them, shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share.
9. The plaintiff being the proprietor of one separate account of the estate deposited this full amount on 25th September; his brother, defendant 3, being owner of another such account, deposited the full amount on 26th September; and defendant 1 and defendant 2 also holders of separate accounts each deposited the full amount on 14th October, being the opening day after the puja vacation. The vacation lasted from 1st to 12th October the 13th being a Sunday. The Collector gave a certificate, as required by Section 14, in the names of all the four depositors sharers for joint ownership of the purchased share, each having an equal interest. The plaintiff then brought this suit for a declaration that he was the sixteen-annas purchaser of the separate account No. 393/3, for a declaration that the defendants had no right or no right had accrued to them therein, and that, if necessary, orders might be passed setting aside the auction sale in respect of that share made by the Collector in favour of the defendants; there was also a prayer for injunction and recovery of possession, and finally a prayer for a declaration that if it were held that the other defendants had purchased any interest on account of the deposit of money by them, then they were not entitled to more than a share in proportion to their interest in the parent estate. The trial Court held that the plaintiff became purchaser of the separate account by his deposit on 25th September, and that the subsequent deposits by the other sharers gave them no interest; and also held that the provisions of Section 33, Land Revenue Sales Act, 1859, had been complied with by the plaintiff. The lower Appellate Court agreed with the former finding, but held that as the plaintiff had not 'declared and specified' his case of substantial injury before the Commissioner he had not complied with the provisions of Section 33, and hence his suit must fail. He therefore allowed the appeal and the plaintiff now appeals.
10. It may be noted at the outset that Mr. Sen appearing for respondents concedes that he cannot support the judgment of the lower Appellate Court on this last operative ground; he contends however that the Collector was right in allotting the separate account in equal shares to all the depositors and also that the plaintiff has failed to prove substantial injury in the present case and hence the suit must fail. The substantial questions for decision in the appeal are first the interpretation to be given to the words of Section 14, cited above, in reference to the declaration made by the Collector under the Section, and secondly, whether Section 33 applies to the facts of this case.
11. Mr. Chakravarti appearing for the appellant supports the interpretation given by the lower Courts and also further contends that Section 33 has no application to the present case, and lastly that, if it applies, then he has complied with its provisions. The Section has been considered in three cases, Debi Prosad v. Mt. Aklo Koer (1900) 4 C.W.N. 465, Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 and Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735. In the first case three sets of sharers had each deposited the whole arrear due, and the Collector had given them a certificate for joint ownership of the defaulting share. The plaintiff sued for a declaration that he was entitled to a share in proportion to his share in the parent estate, and lost. There is nothing to show whether the amounts were deposited on the same or on different days, nor was there any contention that any one depositor had priority. Incidentally it may be noted that there was no question of annulment of the sale or of the matter of the applicability of Section 33.
12. In Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 the plaintiff was the owner of the defaulting share and clearly prayed for annulment; he made no claim as a purchaser by deposit under Section 14, but sued other sharers who had so purchased. The arrears had been deposited by some of these defendants on 4th October, and by others on the 7th, and the Collector had given them all a joint certificate under Section 14. The basis of the plaintiff's case was that he had deposited the arrears before the date of auction sale and that the whole proceedings of the Collector were invalid. No question arose there as between the purchasing defendants. It was held by Beverley J. that Section 6 of the Act applied and that the plaintiff's deposit having been made after the last date of payment was ineffective, he further held that Section 33 applied to the case of such a sale under Section 14; Ameer Ali J. held that the deposit was effective, but that Section 33 only applied to a case of an auction sale under the Act and not to one under Section 14. Petheram J. to whom the case was referred agreed on both points with Beverley J. In Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735 defendant 1 was the first depositor of the entire arrears on the separate account, and the Collector had given him a certificate. It was found as a fact, that defendant 1 was benamidar for defendant 2 who was the defaulting cosharer. The plaintiff had deposited the entire arrear on the day after defendant 1 had done so, and he sued for recovery of possession of the whole share or in the alternative for a half-interest in it. The plaintiff succeeded in the trial Court. On appeal Coxe J. was disposed to hold that although defendant 2 was the real purchaser, and although he was a sharer in the defaulting separate account, he was not debarred from taking advantage of the right to purchase given under Section 14, and he considered, but did not definitely decide, that the word 'other' in the phrase 'other recorded sharer or sharers' in Section 14 was a mere inadvertence. He held however that defendant 1 as the first depositor was the purchaser and that the Collector had therefore been right in recognizing him as purchaser, and that
as soon as the payment is made the purchase is complete and there is nothing left for anyone else to buy. The Collector is bound therefore in my opinion, to recognize the depositor who first pays the whole amount, or, if there are more depositors than one, to recognise as joint purchasers those whose payments first amounted to the total arrears due.
13. He then went on to refer to Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 and to approve the view that Section 22 applies to sales under Section 14, and to repudiate an argument that the sale to defendant 1 being a sale to a sharer in the defaulting separate account it was a nullity and that it was therefore unnecessary to annul it. Finally he dealt with a contention that the plaintiff did not want the sale annulled but merely that he might be declared the purchaser in these terms (at page 1107):
To accept this contention would, in my opinion, be twisting the plain English of the Statute. The defendant has been formally declared the purchaser and the land has been delivered to his possession. To take it away from him and give it to the plaintiff would, in my opinion, be a manifest annulment of the sale, and a complete annulment if the whole were taken away from him, and an annulment pro tanto if a portion were taken.
14. He held therefore that as the plaintiff had suffered no injury, even if the purchase was bad as being made by a defaulting proprietor, Section 33 was fatal to his suit. In my opinion, though the words of Section 14 are not entirely free from ambiguity, the clear meaning is that, after the separate share has been put up for (auction) sale under Section 13 and a bid sufficient to pay the arrear has failed to materialize, the Collector is to stop the 'sale' and declare that the entire estate will be put up for sale at a future date unless the sharers specified in Section 14 exercise the right of preemption given to them, that is to say unless one of them or any group of them 'purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share.' I agree therefore on this point with the view expressed by Coxe J. in so far as there is in fact a 'purchase' by one sharer or a group of sharers jointly, but I would reserve judgment on the view expressed by the learned Judge that apparently sharers may come along independently in driblets within the ten days period and pay in odd amounts and that the Collector is to treat as purchasers all those who have paid in something contributing to an amount equal to the total arrear. The case under consideration then was one of full deposit by one depositor and it was not strictly necessary therein as it is also unnecessary here to decide this point. There is the same objection to this view of the Section as to the view that it means as was apparently assumed in Debi Prosad v. Mt. Aklo Koer (1900) 4 C.W.N. 465. For example, how is the Collector to allot shares to the respective contributors. If the framers had any idea that there was to be anything but one straightforward transaction of purchase by one sharer or several coming jointly and simultaneously it seems to me that they would have made provision for these matters. It seems to me that the condition in the statutory declaration under Section 14 must be interpreted as a statutory offer, as it were, to the privileged parties to come and purchase the property, the purchase to be made by depositing the whole arrear, and being completed by such deposit; independent deposits of smaller sums should be ineffective. However for the purposes of this case it is sufficient to hold that if the first comer is, as here, a depositor of the full arrear, then he becomes the purchaser and all subsequent depositors acquire no interest; the sale is complete by the first deposit, and thereafter there is nothing to sell. Defendants 2, 3 and 4 in this case acquired nothing by their deposits.
15. It may be noted that the Board's Manual has at different times contained various instructions on how this point is to be interpreted, the present instruction in force is to follow the decision of Coxe J., but with the qualification that where the whole amount is not paid by any one depositor, those depositors will be recognized as joint depositors whose payments first amount to not less than the total arrears due, provided that the payments are made on the same day, at whatever hour. I think however that the view expressed by me above will be found to be correct, and if sharers who cannot pay the full amount of the arrear wish to join with other sharers in the purchase they should do so before coming to pay in the amount of the arrear and they should themselves at the time of purchase claim the respective shares so jointly purchased.
16. We next come to consideration of Section 33 which lays down that no sale for arrears of revenue shall be annulled by a Court of justice, except on the ground of its having been made contrary to the provisions of the Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of, and no such sale shall be annulled upon such ground unless such ground shall have been declared and specified in an appeal made to the Commissioner. In my opinion this is not a suit for annulment of a sale for arrears of revenue at all, in fact annulment of the sale would give no remedy to the plaintiff; its effect would be merely to restore the property to the defaulting co-sharer provided that the decree could be executed. As the defaulting proprietor is not a party to the suit a decree for annulment would probably remain ineffective. The effect of an annulment is dealt with in Section 34 of the Act which clearly contemplates restoration of the defaulter, assumed to be decree-holder, on certain terms and conditions. Assuming that such restoration were made it could not help any of the present parties. If the property were again put to sale after due notice it might be sold in auction to some outside bidder; and by no other procedure can there be a re-sale after annulment of a sale; the Court has no power to make a sale after annulment.
17. With all respect to the learned Judges who decide Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735 it must be stated that in referring to and relying on the case in Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844, they failed to appreciate the vast distinction between that case where the remedy sought was actual annulment, and the type of case where there is a dispute between rival purchasers. Some of the confusion is due to the fact that the word 'sale' is used rather loosely in the Act. 'Sale' must necessarily include the whole procedure from issue of notices under' Sections 5 and 6 up till the final completion of the 'sale' in; its narrower sense as the corollary to 'purchase.' A 'sale' is conducted contrary to the provisions of the Act within the meaning of Section 33 if there is any defect in any of these proceedings, not merely for defect at the time of actual auction. In Section 14 'sale' is used to refer to the 'auction sale,' while the verbal difficulty to some extent is surmounted by referring to the pre-emption procedure as 'purchase.' If the 'purchase' is completed the Collector is to give a certificate, and then the purchaser or purchasers shall have the same right as if the share had been purchased at the 'sale'; if the 'purchase' is not made, the entire estate is to be sold after notification and publication as required by Section 6. Now it is clear that Section 33 will apply to a sale made under the pre-emption provisions of Section 14 if there is any defect in the preliminaries, (though Ameer Ali J. in Gossian Chatturbhuj v. Ishrimal (1894) 21 Cal. 844 held the contrary view). According to the majority view in that case had the plaintiff had a substantial point in respect of his deposit of the arrear after the last day of payment he could have succeeded. It is therefore correct to say in what may be called head-note form that Section 33 applies to sales held under Section 14, but that is quite a different matter from saying that it must apply to a case where the dispute is between rival purchasers neither of whom really wishes the sale to be annulled, where the dispute is merely as to the identity of the vendor and not as to the fact of sale. The learned Judge (Coxe J.) having held that the sale was complete as soon as payment had been made of the full arrear by a qualified person and that the Collector was bound to recognize the depositor who first deposited the whole amount, it seems difficult to follow how he could then hold that it was twisting the plain English of the statute to say that the plaintiff did not want the sale annulled. The dispute was wholly as to who was the first depositor; the plaintiff contended that defendant 1 of that case, being a benamidar for defendant 2, a sharer of the defaulting separate account, was not a person who in law could purchase the account. If the contention was accepted, then certainly defendant 1 was not a depositor at all under the Section; the plaintiff was the first depositor, and according to the learned Judge's own view the purchase was complete when the plaintiff deposited the full amount, and he was merely asking in the suit for a declaration that the Collector was bound to recognize him, and give him the certificate.
18. It is to be noted that there is no provision in Section 14 for any declaration of purchase as there is in Section 22 in the case of a purchase at a public sale. In the latter case some formal declaration by the auctioneer is manifestly required. The declaration completes the sale, subject to the conditions as to payment of deposit, and of the full purchase price. In the case of public sales the certificate of sale is not given until after 60 days from the day of sale, or, where there is an appeal to the Commissioner for annulment of the sale which is not decided within the 60 days, then until after the conclusion of the appeal. It cannot be said then that the granting of the certificate is itself any part of the 'sale' which can be annulled, for the certificate is not given till after the Commissioner has decided whether to annul the 'sale' or not. In cases of the present type where the dispute is between rival purchasers the real dispute is as to the correctness of the Collector's certificate, which is under Section 28 the purchaser's evidence of title. In my opinion therefore both because annulment would be no remedy in this type of case, and because of the view that the first deposit by a qualified depositor constitutes the purchase, and because what is in dispute is merely the fact as to deposit and the effect of the law, Section 33 has no application; it will only apply if the sale is attacked for any defect in the procedure leading up to the position that a deposit of the amount of arrear by a qualified co-sharer will be a valid purchase of the defaulting share. Though constrained to differ from the view expressed in Bahuria Sambho Kuar v. Harihar Prasad (1914) 1 A.I.R. Cal. 735 as to the applicability of Section 33 to a case of the present kind, it is not however necessary to refer the case to a Full Bench, since, even if the Section applied I hold that it does not affect the plaintiff's claim as he has complied with its requirements both as to proof of substantial injury, and also admittedly as to raising the particular ground of irregularity now complained of in his appeal to the Commissioner.
19. We proceed then to consider whether the plaintiff has proved that he has sustained substantial injury 'by reason of the irregularity complained of.' A discussion of the point, on the assumption that Section 33 does apply to such cases, merely provides further reasons for holding that Section 33 cannot in fact apply to them. The irregularity complained of here is that the Collector has certified the four defendants as purchasers of the defaulting share, instead of merely certifying the plaintiff as purchaser. As the share has been sold for default of two kists only the purchase must be a lucrative one; the arrears amount to Rs. 480 odd, and the Court has valued the property at Rs. 1200 which cannot be an over estimate. If the Collector's action amounts to part of the procedure of sale, then certainly the irregularity in his procedure has caused substantial injury to the plaintiff. But then argument is adduced from decisions relating to the true type of cases of annulment under Section 33, for example cases relating to disappointed bidders, to show that the injury alleged here by the purchaser is not the kind of injury contemplated by Section 33. This is really true, but the reason is not that there is no substantial injury but that the injury is not of the kind contemplated by Section 33 because that-Section has no application to the case at all; and the reason is closely allied to the fact that the injury is such that the remedy provided by Section 33, viz., annulment, is no cure, and can give no relief. However, it is clear that if it is held that Section 33 applies to this case the plaintiff is not hit by its provisions having complied with its requirements; he proves substantial injury and his ground of irregularity in his complaint to the Commissioner was the same ground as that now relied on, namely the Collector's error in granting a joint certificate.
20. In the view taken above it is not necessary to discuss a point which was argued at some length before us in relation to the deposits made on 14th October, the reopening day, namely whether the ten days period in Section 14 was absolute or whether, if it expired on a holiday, the period was extended till the re-opening day. The present instructions in the Board's Manual are to the latter effect and appear to be correct. I agree therefore that the appeal must be allowed and that the decree of the trial Court must be restored.