1. This appeal arises out of a suit brought (i) to obtain a declaration that an order by the Commissioner of Bhagalpur, dated the 21st June 1900, reviewing and setting aside an order of his of the 23rd March, 1900, by which he had set aside a sale for arrears of Government revenue, was illegal and ultra vires, and to recover possession and mesne profits of the mehal, and (ii) in the alternative to set aside the sale on the ground of irregularity in the service of processes and of inadequacy of price resulting therefrom.
2. The facts are that the plaintiff's mehal was sold by the Collector of Monghyr on the 2nd January, 1900 for arrears of revenue. Appeals were afterwards preferred to the Commissioner both by the plaintiff and by certain co-sharers of his. The minor plaintiff's appeal was dismissed on the ground that he had not made the auction-purchaser a party. The appeal of the other co-sharers was successful and the sale was set aside on the 23rd March, 1900. On the 21st June, 1900, the Commissioner reviewed his order cancelling the sale, set it aside and affirmed the sale. The defendants 1st party have now been put in possession of the mehal by the Collector of Monghyr. Hence the suit for the reliefs mentioned above.
3. The Subordinate Judge has held that the Commissioner could not review and set aside his order of the 23rd March, and therefore that the order of that date setting aside the sale holds good. The plaintiffs are accordingly entitled to possession. He further holds in the alternative that there is no proof of the service of the notice of sale, that the property was sold for an inadequate price, but that there is no direct evidence to show that the inadequacy of price is the result of the non service of the notice of sale. He has accordingly given the plaintiffs a decree.
4. The defendants appeal. On their behalf it has been urged:
(i) That the Commissioner's order of the 21st June 1900, setting aside his previous order annulling the sale was within his powers;
(ii) That the present suit must accordingly fail, unless the plaintiffs can establish the ground specified in Section 33 of Act XI of 1859;
(iii) That the plaintiffs never pleaded that no notice of the application for review was given, no issue On this point was raised or any evidence adduced in support of it and therefore the Subordinate Judge Was wrong in holding that the order of review was bad for want of notice of the application for review;
(iv) That the Commissioner could in any case discharge his previous order of the 23rd March and the Civil Court cannot call in question the propriety of his having done so;
(v) That all notices of the sale of the mehal were duly served and a certificate of sale obtained, and the Subordinate Judge could not go into the question of the service of the notices;
(vi) That the price for which the property was sold was adequate;
(vii) That there is no direct evidence to connect the inadequacy of price with the non-service of the notices; and
(viii) That the Subordinate Judge should not have allowed the plaint to be amended and some of the defendants to become co-plaintiffs, as was done after the remand by this Court.
5. The decision of the appeal really turns on the question whether the Commissioner had power on the 21st June to review his previous order of the 23rd March setting the sale aside. It is to be noted that sale was entirely set aside, and though this was done at the instance of some of the plaintiff's co-sharers, the order was obviously one which affected all the owners of the estate.
6. Now, the Commissioner himself admitted on the 31st July, 1900, that his order of the 21st June was illegal, and that he had no power to review an order once legally passed under the provisions of the Sale Law, Act XI of 1859. The Board of Revenue was clearly of the same opinion: see its order of the 5th September, 1900.
7. Then, it is obvious and admitted that there is no express provision in Act XI of 1859 by which a Commissioner or any Revenue Authority can review or set aside an order once legally passed under the Act.
8. The learned pleader for the appellant however relies on the following cases:--Tuffuzzool Hossein Khan v. Rughoonath Pershad (1871) 14 Moo. I.A. 40 in which a passage at page 48 is specially cited; Laliteswar Singh v. Mohunt Ganesh Das (1906) L.R. 33 I.A. 134, Nusseerooddeen Khan v. Indur Narain Chowdhry (1866) 5 W.R. 93, Badaricharya v. Ram Chandra Gopal Savant (1893) I.L.R. 19 Bom. 113, Ram Chandra Narayan Kulkarni v. Draupadi kom Narayan (1895) I.L.R. 20 Born. 281, Matangini Debi v. Girish Chunder Chongdar (1903) I.L.R. 30 Calc. 619 and Hira Lal Mukerji v. Premamoyee Debi (1905) 2 C.L.J. 306. On the authority of these eases the learned pleader for the appellant argues (i) that a Commissioner or any Revenue Authority has always power to review or set aside an erroneous order of his, and that it is his duty to do so: and (ii) that the word 'final' in Section 25 of Act XI of 1859, as amended by Section 2, Act VII B.C. of 1868 on which it has been argued that the power to review an order under the Act is expressly barred, means no more than 'not open to appeal,' and does not prohibit either review or revision. We are unable to agree to either of these contentions.
9. A Commissioner or Revenue Authority who has once set aside a sale under Act XI of 1859, as was done in this case, and which was actually carried into effect, has no power, such as may or may not be inherent, or vested by statutory enactment, in a Civil Court to revoke or modify an order passed by him under the Act, and the word 'final,' whatever its meaning may be in other Acts, (for all the cases relied on by the learned pleader for the appellant relate to Acts other than Act XI of 1859) must, I think, in Section 25 of Act XI be interpreted as meaning at least 'not open to review.'
10. The matter would seem to be set at rest, so far as this Court is concerned by the decision in Lala Pryag Lai v. Jai Narain Singh (1895) I.L.R. 22 Calc. 419. In this case it has been laid down that the provisions of the Code of Civil Procedure relating to reviews of judgment have not been extended to proceedings under Bengal Acts VII of 1868 and VII of 1880, and consequently in that case, it was held that the order passed on review, confirming the sale, was ultra vires and of no effect.
11. In the judgment it is said: 'I cannot admit that such a power of review is inherent in every Judicial or Revenue officer. It is a power expressly given by law to Judicial officers under certain conditions, and therefore it cannot be assumed that, when not so given, it is inherent in every officer. If this had been so, there need not have been any legislation on the subject. We cannot hold that all this legislation was unnecessary. But in respect of the matters now before us, we find that those portions of the Code of Civil Procedure, which confer the power to review a judgment and regulate the exercise of such powers, have not been extended to proceedings under the Bengal Acts of 1868 and 1880; Section 19 of the Act of 1880 declares that certain portions of the Code of Civil Procedure shall be applicable to proceedings taken in regard to certificates, but we find that the portion of the Code which refers to reviews of judgment forms no part of the law get out in that Section. The Sections of the Code of Civil Procedure relating to appeals are also omitted, but the reason for this omission is clear. The right of appeal is conferred by Bengal Act VII of 1868, Section 2, and this, as it was held in the case of Sadhu Saran Singh v. Panchdeo Lal (1886) I.L.R. 14 Calc. 1 in which we concur, was held to be applicable to proceedings under the Act of 1880 by reason of Section 2 of that Act. There is no provision made for an application for review of a judgment passed on appeal by a Commissioner under the powers conferred by Section 2 of Bengal Act VII of 1868. The Acts of 1868 or 1880 are both of them silent in this respect. We find, rather, that the law has provided other means for correcting an order passed by the Commissioner on appeal, for Section 24 of the Act of 1880 has conferred on the Board of Revenue the power of general supervision and control over proceedings of Commissioners under that Act, so that any person who may be dissatisfied with an order passed by a Commissioner on appeal has thus his remedy by bringing it under consideration of the Board of Revenue. By not providing for a review of such an order, either expressly or by extending to such orders the Code of Civil Procedure relating to reviews of judgment, and by giving to a superior authority, the Board of Revenue, the power to supervise and control any order passed by a Commissioner, the Legislature has, in my opinion, declared an intention that such an order shall not be open to review, but is open to revision by the Board of Revenue with the same result.' With these observations I entirely concur, and have nothing to add to them.
12. It is therefore unnecessary to discuss in detail the judgments cited by the learned pleader for the appellant on his other pleas, tending to show that the Commissioner's order of the 21st June 1900 was good and within his powers.
13. This practically settles the appeal and it is useless to consider whether the sale could be set aside. The sale was rightly or wrongly set aside by the Commissioner and his subsequent order affirming the sale was ultra vires and of no effect.
14. At the same time I would observe that I entirely disagree with the Subordinate Judge in holding that there was no evidence of the service of the notices of sale. I consider that there is sufficient evidence of that. The chowkidars who deny the service are not telling the truth. Then, if there was any sale, the appellant has obtained a certificate of sale, which under Section 8, Act VII of 1868, bars any contention as to the non-service of the notice being raised. Whether the price at which the estate was sold was adequate or not, the Subordinate Judge has himself found that there was no direct evidence to connect the inadequacy of price with the non-service of the notices.
15. There remains the question whether the Subordinate Judge was justified in allowing the plaint to be amended after the remand of the case by this Court. I see no reason why the plaint should not have been amended, and the defendant co-sharers allowed to join the plaintiff in the suit. Their suit was not barred by limitation and the Subordinate Judge has only allowed them mesne profits from the date of the decree. I would accordingly dismiss this appeal with costs.
16. Sheo Adhin will only get the costs incurred by him after the order of remand when he was made plaintiff. The respondent's cross appeal is not pressed and is therefore dismissed.
17. Sharfuddin, J.
17. I concur in the judgment of my learned brother, but would add the following observations:
18. It appears that in the case of Lala Pryag Lal v. Jai Narayan Singh (1895) I.L.R. 22 Calc. 419 the learned Judges have relied upon the provisions of Sections 19 and 24 of Act VII (B.C.) of 1880. I find that the provisions of these Sections have been re-embodied in the repealing Act, I (B.C.) of 1895 (vide Sections 19--30).
19. I find that the appellants in the present appeal have relied upon many authorities; one of which is the case of Matangini Debi v. Girish Chunder Ghongdar (1903) I.L.R. 30 Calc. 619. The head note of this case is a little misleading. In this case it appears that a certain mehal was sold for arrears of cess under Section 21 of Act I (B.C.) of 1895 on the 31st January, 1896. Thereupon, plaintiff No. 3 applied to set aside the sale on making the necessary deposit under Section 19 of that Act. The deposit was made, and the sale was set aside by the Certificate Officer on the 14th February, 1896. The auction purchaser then appeared and objected to the cancellation of the sale on the ground that the plaintiff No. 3 was not a party entitled under Section 19 of the Act to make the deposit and apply for the cancellation of the sale. The Certificate Officer held that he had the power to review his order under which the sale was set aside and confirmed the said sale on the 20th March, 1896. On appeal, the Collector restored the first order of the Certificate Officer cancelling the sale. The auction purchaser then moved the Commissioner to revise the order of the Collector, and the Commissioner held that the Collector had no jurisdiction to hear the appeal and, restoring the order of the Certificate Officer passed in review, confirmed the sale. It was held by the learned Judges that the Commissioner had power of revision under Section 33 of the Act and that he having under that Section affirmed the sale, it was unnecessary to consider the further question whether it was open to a Certificate Officer himself to review the order, when no such power is conferred on him by the Act. It was further hinted in this judgment that-the case of Lala Pryag Lal v. Jai Narayan Singh (1895) I.L.R. 22 Calc. 419 may lend some support to the appellant's contention to the effect that the Certificate Officer had reviewed his own order without jurisdiction.
20. The present appeal is with reference to a review order passed by the Commissioner Bhagalpur under which he has cancelled his own order of the 23rd March, 1900, and affirmed the sale.
21. Act XI of 1859 does not provide for any review by a Commissioner of his own order in the matter of sale.
22. It appears from the order sheet that the Commissioner set aside the sale on the 23rd March, 1900, but it would seem that the Personal Assistant to the Commissioner submitted the papers of that sale, on appeal to the Commissioner, on the 27th April, 1900, for any change the Commissioner might choose to make, but the Commissioner observed on the 28th April that no application had been made to him to revise his orders setting aside the sale. Then on the 15th May, 1900, a petition for revision of the order of the 23rd March, 1900, was put in. Then on the 16th May the Commissioner fixed the 22nd June for the hearing, and ordered a notice to be issued to the parties concerned. It does not appear from the record whether any such notice was served on the opposite party, but the allegation in the plaint is that the plaintiffs had no information of that order, and this statement has not been traversed by the contesting defendant.
23. The date originally fixed for the hearing was, as already observed, the 22nd June; this was altered to the 21st June by the Personal Assistant to the Commissioner. The matter was heard and decided ex-parte on the 21st June,--the altered date--and the sale was affirmed on that date. Some of the authorities relied upon by the appellants in this appeal relate to matters under Acts other than the Act XI. of 1859, and they lay down that orders under those Acts are subject to review if they are ex-parte, ultra vires, or improper. I find that these conditions are present in the present matter, because there is no provision in any of the Acts for a review of orders for sales for arrears of Government revenue and therefore the Commissioner's order of the 23rd March, 1900, cannot be reviewed. The order reviewing it was therefore ultra vires, ex-parte and improper. I have already observed that no review is allowed of an order by a Commissioner setting aside a sale, but if it were allowed or if by implication it be conceded that a review could be allowed under the authorities quoted by the appellant, then it would be the order of the Commissioner dated the 21st June that would seem to be subject to review, and not his first order of the 23rd March which was inter partes and within jurisdiction.
24. For the above reasons and for the reasons staged by my learned brother, I concur with him in dismissing the appeal and cross appeal.