R.C. Mitter, J.
1. This appeal arises out of a suit brought by the plaintiffs for a declaration that the revenue sale of Tauzi No. 932 of the 24 Parganas Collectorate, held on 17th March 1932, was a nullity and in the alternative for setting aside the same on the ground that it was held contrary to the provisions of Act 11 of 1859 and the plaintiffs suffered substantial injury thereby. The sale was held for arrears of revenue due upto the January kist of 1932. The principal defendant purchased at the said sale. The arrears of revenue for this tauzi were payable in the two kists and not four, namely on 12th January and 28th Marck of every year.
2. Six separate accounts had been opened by some of the proprietors of the said estate being Nos. 932/1 to 932/6 and the rest of the proprietors were recorded in the residuary. Plaintiffs 1 and 2 were recorded as proprietors of separate account No. 1, Nos. 3 to 5 of separate account No. 2, Nos. 6 to 8 of separate account No. 3 and Nos. 9 and 10 represented by their guardian, plaintiff No. 11, of separate account No. 6. The pro forma defendants were the recorded proprietors of separate accounts Nos. 4 and 5. The plaintiffs' case is that the Collector wrongly assumed that separate account No. 6 was in arrears from kist January 1925 to kist March 1931 and on that footing issued a notification under Section 5 of Act 11 of 1859 (hereafter to be called the Act) fixing 28th September 1931 as the latest date of payment of the said arrears. On 17th December 1931, the said separate account No. 6 was put up to sale, but there being no bidders, a declaration was made under Section 14 of the Act that the entire estate would be put to sale, unless the other recorded proprietors of the said estate No. 932 purchased the share represented by the said separate account No. 6 by paying up the arrears due. The plaintiffs maintain that as there was in fact no arrears in respect of separate account No. 6, it could not be put up to sale in the first instance and consequently the declaration made under Section 14 and the subsequent sale of the entire estate were ultra vires. They further maintain that in any event, the notification issued under Section 5 of the Act was a bad one, inasmuch as it required payment of the arrears on a date which was not one of the dates fixed under Section 3 for payment of arrears of revenue for this particular estate. On this ground they pray for setting aside the sale which, according to them, fetched a grossly inadequate price. Both the Courts below overruled both these contentions and have dismissed the suit. These two grounds have been reiterated before me and a further ground not taken in the Courts below, which I will hereafter notice, was also pressed.
3. The contention that the share recorded in separate account No. 6 was not in arrears at all or at any rate could not be sold under the Revenue Sales Law has been pressed before me on the following facts : The revenue payable for this separate account is twelve annas per year payable in two kists, viz. on or before 12th January and 28th March of every year. The recorded proprietors of this separate account regularly sent the revenue payable to the Collector by money orders. They mentioned all particulars correctly in the revenue money order forms but in giving: the number of the estate they did not correctly mention the tauzi number of the estate for which revenue was being sent. They mentioned the number of the estate as Tauzi No. 932 instead of touzi No. 932/6 with the result that the Collector credited the amounts so sent to the residuary, overlooking the fact that the remitters were-not recorded as proprietors of the residuary estate but were in fact recorded as proprietors of separate account No. 6. The plaintiffs accordingly say that the Collector ought to have followed Rule 102 of the Bengal Tauzi Manual and if he had done so, the mistake in the tauzi number would have been corrected and the revenue properly credited. If the matter had rested there, the appellants' contention would have had considerable force, but there is one other important fact which was pleaded in the additional written statement and found in favour of the contesting defendant. It is that separate account No. 4 was in arrears, and was put up to sale by the Collector also on 17th December 1931. There was no bid and on the same day the procedure indicated in Section 14 was also followed in respect of the separate account (Ex. l). Such being the fact, the Collector had jurisdiction to notify for sale the entire estate for the default of separate account No. 4.
4. The additional ground which has been urged before me has now to be considered. The ground rests on the fact that in January 1932, some of the proprietors of some of the separate accounts paid revenue which was received by the Collector. It is said that that had the effect of keeping the separate accounts still open and the entire estate could not in law be sold thereafter as was actually done. I cannot accept this contention for the following reasons. The, effect of a declaration under Section 14 followed by the neglect of the other recorded proprietors to purchase the share in default by paying up the arrears due in respect thereof is that the separate accounts are closed. On the closing of the separate accounts, a general account of the receipts of revenue in respect of the entire estate must be made and if on such account being made, there appears an arrear of revenue the entire estate is to be notified for sale. In the case before me, the Collector followed what is required of him under the law. He closed the separate accounts and credited whatever he received after 27th December 1931 (the date of closing the separate accounts) towards the demand of the entire estate. The payments made up to 12th January 1932 fell short of the demand up to the January kist of 1932, and he accordingly notified the sale of the entire estate for arrears due in respect thereof up to the January kist of 1932. The sale of the entire estate held on 17th March 1932 was not accordingly a nullity. The view I am taking is supported by the observations in Sheikh Hazi Mutusaddi v. Mahomed Idris (1915) 2 AIR PC 177 at p. 767. The revenue sale in that case was held to be without jurisdiction, for the subsequent payments made there wiped out the arrears for the March kist of 1904 for which the sale was held, but still left the June kist of 1904 in arrears and this Court observed that if the sale had been held for the arrears of the June kist of 1904, the sale would have been all right.
5. The only other point that remains for consideration is whether the notification issued under Section 5 was a bad one. The said notification required the recorded proprietors of separate account No. 6 to pay up the arrears due from the January kist of 1925 up to kist March 1931 by 28th September 1931. Even if the said notification was a bad one, the effect would only be that there was a material irregularity in putting up to sale the said separate account No. 6 on 17th December 1931. But I have already held that the default of separate account No. 4 was the material default. In this view the contention of the appellants that the notification under Section 5 in respect of separate account No. 6 was a bad one, loses its importance. Even if the point had a material bearing in the appeal, I do not see any cogency in it. A sale held without complying with Section 5 where that Section is attracted is a sale contrary to the Act and such a sale cannot be challenged on that ground in a Civil Court, unless such a ground had been specified in an appeal made to the Commissioner (Section 33 of the Act as construed by Lord Macnaghten in Gobind Lal Roy v. Ram Janam Misser (1894) 21 Cal 70). The sale was held on 17th March 1932. The appellants before me filed, a memorandum of appeal' before the Divisional Commissioner not within 60 days of the sale as the law required but on 26th January 1933. The Commissioner did not register the same as it was hopelessly out of time. In the said memorandum of appeal, no doubt the irregularity or illegality now complained of was pointed out. But if it be held that there was no appeal before the Commissioner within the meaning of Section 33 of the Act, the appellants would be debarred from challenging in the suit the sale on this ground. In my judgment, the appeal contemplated in Section 33 of the Act is, as the Section expressly says, an appeal made to the Commissioner under Section 2 of Bengal Act 7 of 1868, that is an appeal which it would be 'lawful for Commissioner of Revenue to receive,' that is an appeal presented to him within 60 days of the sale or one presented to the Collector within 45 days of the sale for transmission to the Commissioner. An appeal not so presented is to be treated as no appeal and no attack can be launched on the sale in a suit on the ground that the sale was contrary to the provisions of the Act, the estate being admittedly in arrears. This is the view taken by Khwaja Mohamed Noor J. in Prithvi Chand Lal v. Kirtyanand Singh (1932) 19 AIR Pat 21 at p. 769 and by Macpherson J. in Nanak Prosad Sahu v. Mt. Kasheda Kumri (1936) 23 AIR Pat 260 at p. 277, with which decisions I respectfully agree. I accordingly hold that the ground that the sale has to be set aside inasmuch as the notification under Section 5 was a bad one is not entertainable.
6. The appellants further say that the notification published under Section 5 of the Act is a bad one. This further contention of the appellants is that the Collector can no doubt fix a date for the payment of the arrears in cases falling within any of the four categories mentioned in Section 5 but that the date so fixed must coincide with one of the dates notified under Section 3 for the payment of arrears due in respect of the particular estate in question. The notification under Section 5, they say, is no doubt a public call on the debtor to pay but the date of call must in this case be either 12th January or 28th March, for these are the only two dates for payment of arrears of tauzi No. 932 fixed under Section 3. They further say that the case in Prithvi Chand Lal v. Kirtyanand Singh (1932) 19 AIR Pat 21 on which the Courts below have relied is distinguishable, for in that case the date of payment notified under Section 5 was in fact one of the dates for payment of arrears of revenue of that particular estate. The point is not free from difficulty in view of the last three lines of para. 1, Section 5, but as the point is not material in the view I have taken on the other points in the case, I reserve my opinion on the same. For the reasons already stated, I dismiss the appeal but without costs. Leave to appeal under Clause 15 of the Letters Patent is granted.