Petheram C.J., Pigot, O'Kinealy, Macpherson and Ghose, JJ.
1. It appears that a putni was sold on the 2nd Aughran 1293,. under the provisions of Regulation VIII of 1819, the notices of sale having been published on the 15th Kartick. And the question that has been referred to us is whether the publication of notices relating to an impending putni sale, made on the 15th Kartick, on a date later than that prescribed by law, is not a sufficient ground for setting aside a sale subsequently held, and whether under the terms of Section 14 this was a sufficient plea for a reversal of that sale.'
2. The sale took place under Clause 3 of Section 8 of Regulation VIII of 1819, which runs as follows:
On the 1st day of Kartick, in the middle of the year, the zemindar shall be at liberty to present a similar petition, with a statement of any balances that may be due on account of the rent of the current year up to the end of the month of Assin, and to cause similar publication to be made of a sale of the tenures of defaulters, to take place on the 1st of Aughran, unless the whole of the advertised balance shall be, paid before the date in question or so much of it as shall reduce the arrears, including any intermediate demand for the month of Kartick, to less than one-fourth, or a 4-anna proportion of the total demand of the zemindar, according to the kistbundi, calculated from the commencement of the year to the last day of Kartick.
3. The clause says that the zemindar shall 'cause similar publication to be made,' that is to say, a publication similar to that which is prescribed by the preceding Clause 2; and we are of opinion that the requirements in that clause, so far as the publication of the notice of sale, and the period at which it is to be published, must be imported into Clause 3 mutatis mutandis.
4. Now, turning to Clause 2 of Section 8 which relates to a sale in the beginning of the year, it prescribes that the notice of sale shall be stuck up in the Collector's cutcheri as also in the Sudder cutcheri of the zemindar, and at the cutcheri or principal town or village upon the land of the defaulter. And it then lays down that 'the zemindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mofussil shall be served by a single peon who shall bring back the receipt of the defaulter, or of his manager for the same; or in the event of inability to procure this, the signature of three substantial persons, residing in the neighbourhood, in attestation of the notice having been brought and published on the spot. If it shall appear, from the tenor of the receipt or attestations in question, that the notice has been published at any time previous to the 15th of the month of Bysack, it shall be a sufficient warrant for the sale to proceed upon the day appointed,' and so on.
5. The clause distinctly provides that it is where the notice has been published previous to the 15th of the month, there shall be a sufficient warrant for the Collector to sell the putni. And incorporating this provision in Clause 3 of the same section, we take it that it is when the notice has been published previous to the 15th of the month of Kartick that the Collector is authorized to sell. This view is strengthened by a reference to the procedure laid down in Section 10 of the Regulation.
6. It has, however, been contended before us by Mr. Bell on behalf of the zemindar that what the law regards as essential is the actual publication of the sale notification, and that so far as it prescribes (if Clause 2, Section 8, does prescribe it) that the notice should be served before the 15th Kartick it is merely directory, and that the non-compliance with that direction is not a 'sufficient plea' within the meaning of Section 14 of the Regulation for setting aside the sale.
7. In Maharani of Burdwan v. Tarasundari Debi I.L.R. 9 Cal. 619; L.R. 10 I.A. 19 which was a suit brought to set aside a putni sale, the Judicial Committee of the Privy Council, in referring to Regulation VIII of 1819, expressed themselves as follows:
That is a very important Regulation, and no doubt it was enacted for a certain and defined policy, and ought as a rule to be strictly observed. Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar, who institutes the proceeding, exclusively responsible for its regularity.' And later on, with reference to a decision of Sir Barnes Peacock Sona Bibee v. Lall Chand Chowdhry 9 W.R. 242 they say as follows:
The material part of Clause 2, Section 8, Regulation VIII of 1819, so far as this case is concerned, is that the notice required to be sent into the mofussil shall be served. The zemindar is exclusively answerable for the observance of the forms prescribed by that clause. The subsequent part of the section, which prescribes that the serving peon shall bring back the receipt of the defaulter, or of his manager, or in the event of his inability to procure it, that he shall obtain that which by the Regulation is substituted for it, is merely directory, and if not done, does not vitiate the sale, provided the notice is duly served
8. The Judicial Committee use the expression 'due publication' of the notice of sale. This, we think, refers, not only to the actual publication of the notice, but also to the time at which it is to be published. The Regulation gives to the zemindar a summary remedy--a power to bring to sale the tenant's estate without a suit; and, therefore, as the Privy Council has also said, it is 'to be strictly observed '. And if it is to be strictly observed, it is impossible to say that, though the notice of sale may not be published until the 15th Kartick (and we have already said that the Regulation prescribes that it must be published before the 15th Kartick), the requirement of the law as to the publication of the notice has been complied with.
9. Again, in the case of Ram Sabak Bose v. Monmohini Dassee L.R. 2 I.A. 71; 14 B.L.R. 394 the Privy Council says that 'the reasonable object of the law (i.e., Regulation VIII of 1819) is that the defaulter should have timely notice of the intention to sell'; and if this object is to be kept in view, it is obvious that an essential requirement of the law was not carried out in this case, and that the putnidar has made out a 'sufficient plea' for setting aside the sale, within the meaning of Section 14 of the Regulation.
10. The learned Judges who have made this reference refer to the decisions of Sreemutty Dassee v. Pitambur Panday 24 W.R. 129 and Matungee Churn Mitter v. Moorrary Mohun Ghose I.L.R. 1 Cal. 175; 24 W.R. 453 as expressing opinions different from that which they are inclined to hold. In the last case, which was the case of a sale in the beginning of the year, the Court held that 'it would be no sufficient plea if the notification had been published on; instead of previous to, the 15th Bysack'; and that even assuming that the publication took place on the 15th, 'still the defaulter had two days more than is prescribed by the Regulation ', because the sale did not take place until the 3rd Jeyt. For the reasons already expressed, we are unable to agree in the views expressed in this decision.
11. As regards the other case referred to, we observe that it was decided upon a ground which does not really touch the question involved in this case.
12. Upon these grounds we are of opinion that the question referred to us must be answered in the affirmative. The appeal will be dismissed with costs.