Pratt and Gupta, JJ.
1. This is an appeal from the judgment of the Subordinate Judge of Chapra dated, the 16th of August 1904 decreeing the plaintiff's suit for annulment of a sale held by the Collector for arrears of Government revenue under the provisions of Act XI of 1859 The defendant No. 1, who was the auction-purchaser, and certain other persons, who hold under him and were also made defendants in the suit, are the appellants before us. The facts of the case are undisputed and are thus stated in the judgment of the Lower Court: 'There is a revenue-paying estate Khawaspur Tawzi No. 1692. The plaintiff was the proprietor of an ijmali kalam of 3 annas odd in the estate. The annual sadar jamma was Rs. 213-2 as. The arrears up to June 1901 were Rs. 1,438-13 annas 9 pies. On the 16th September 1901 the property was put up to sale, but there were no bidders. The Collector then proceeded under Section 14 of the sale law and on the 17th September the plaintiff paid off all the arrears; two months after, that is, on the 16th November 1901, the plaintiff was declared to be the purchaser of the ijmali share,
Against this order there was no appeal and on the 8th February 1902 the sale was confirmed.
'But arrears bad again accumulated from September 1901 and the arrears of September kist of 1001 and of January kist 1902 became due and the Collector again sold the properly for the January kist of 1902. The sale took place on the 26th of March 1902 and the defendant No .1 became the purchaser.
' On the 11th March 1902 the plaintiff moved the Collector for the payment of the money and on the 18th March the Collector ordered that the money due may be paid by the 2oth March.
' The plaintiff complains that he became aware of this order on the 22nd March, that the Revenue Courts were closed on the 25th and the money could net therefore be paid. The sale was held on the 26th March. The plaintiff says that he vorbally offered the arraigns to the Collector on the 26th March, but the Collector did not accept the money.
'The plaintiff appealed to the Commissioner; the appeal was rejected on the 25th August 1902 and hence this suit.
' The defendants contend that the sale was perfectly valid.
2. The learned Subordinate Judge ordered the sale to be annulled on three grounds. He hold firstly that 'the sale having been made without jurisdiction was no sale and is therefore null and void,' secondly ''that a notice under Section 5 was imperative, and the omission in this direction was an irregularity,'' and, thirdly, that 'the property was undersold,' that is sold for an inadequate price.
3. As regards the first ground, namely want of jurisdiction, the learned Sub radiant Judge has held that the plaintiff was bound under the terms of Section 30 to pay the arrears of the September and the January kids, but that, inasmuch as the plaintiff did not get 'his sale certificate, which should have been given to him under Section 28 immediately after the sale became fital, unt 1 the 14th of March 1902 the plaintiff was not bound to pay the arrears before (he next kisl day, that is the 28th of March 1902 The Collector had therefore no jurisdiction to sell before that date. The sale notification was therefore invalid on the face of it.' Again 'he (the plaintiff) was therefore bound to pay all the arrears that had acerued. within the next kist, that is within 28th of March 1902, and in default the property could then be sold.'
4. We can find no authority either in the Act or in the case hid for the above proposition and the learned pleader for the plaintiff respondent has not adduced any arguments in support of it.
5. The sale certificate, as the terms of Section 27 show, is granted for purposes of guidance, but the title vests in the purchaser from the date of sale. The sale in this rase took place on 17th September and was confirmed on the l6th of November 1901, and under the terms of Section 30 the plaintif as purchaser became answerable for the kists of 28th September 1901 and 12th January 1902. The learned pleader has also not attempted to support, the second ground relied on in the Lower Court's judgment, and has frankly conceded that in this case no notice under Section 5 was necessary, inasmuch as the estate was not 'under attachment by order of any judicial authority or managed by the Collector in accordance with such order.'
6. The plaintiff respondent however resists this appeal and rests his case mainly on two other grounds, the principal of which has been found against him in the Lower Court's judgment. The facts relating to this point as well as the finding of the Lower Court are contained in the following paragraph of the judgment:
On the 16th November 1901 the plaintiff was declared to be the purchaser, but in January he deposited the January kist of 1902, while the previous September kist remained due; the Collector deducted the amount tendered as January kist as against the September kist and the plaintiff contends that the Collector had no jurisdiction to do this and the plaintiff relies on Sections 59 and 60 of the Contract Law and contends that the Collector had no jurisdiction to deduct the amount for an earlier arrear, though the payment was expressly made for a later arrear. But under the practice in force the Collector was fully competent to set off the amount paid as against the earliest arrear due and the laws regulating the relations of an ordinary creditor and debtor do not apply to the realization of land revenue.
7. It has been urged upon us by the learned vakil for the respondent that this decision of the learned Subordinate Judge is not correct; that Eupee3 53-9-10p. was due on the 12th January 1902 for the January kist on acount of the estate; that the 12th January being a Sunday the plaintiff paid into the Treasury a sum of Rs. 73 and it. was specified in the chalan and also in the duplicate chalan signed by the Treasurer and returned to the plaintiff as his voucher that the amount was paid for the January kist, that under Section 59 of the Indian Contract Act, which is based on a sound principle of law, the Collector had the option of refusing to accept the money on account of (he January kist, when the kist for September was still in arrear; but that having accepted the payment and given the plaintiff a receipt the Collector had not the option of crediting the amount against an older debt: that therefore there were no arrears for the January kist and the gale held on the 26th of March 1902 on account of the January kist was null and void and held without jurisdiction under the A ct.
8. On careful consideration we are unable to accept this argument as sound. The sale law under Act XI of 1859 is complete by itself and we are of opinion that the relation between the Government and the holders of estates Lable to pay revenue under the Act stands on an entirely different footing from that on which the relation between creditors and debtors is based, and that arrears of Government revenue are not a debt within the meaning of Section 59 of the Contract Act. Hence for the protection of tenants it became necessary to enact Section 55 of the Bengal Tenancy Act (Act VIII of 1885). No such principle has ever been recognised in the matter of payment of Government revenue and the well known and the universal practice is to the contrary. The method in which the accounts of land revenue are kept in the Collector's register under rules framed by the Board of Reverie is shown in the extract of the Register, relating to Khawaspur printed at page 12 of the Toper Bock and an account of the arrears is alto shown at p. 75. The plaintiff himself paid Rs. 73 instead of Rs. 53 on the 13th of January evidently to cover old arrears, if any. It has been further argued that, since the plaintiff paid the amount on account of the January kist, the Collector would have in fairness given the plaintiff intimation of the fact that the amount had been credited against the September and January kists taken together. As a matter of' fact the plaintiff had such intimation and the fullest opportunity was given to him to pay up the arrears. The Sale Proclamation (at page 23) was issued on the 19th of February 1902 and the plaintiff took no staps to pay off the small arrear of Rs. 16-12-2 until the 11th of March, when he petitioned the Collector for permission to pay in the amount. The Collector, though not hound to accept payment, ordered on the 18th of March that the amount might be paid by the 25th of that month, the 26th being the advertised date of sale. The plaintiff failed to make the payment and the estate was sold on the 26th and was purchased by the defendant No. 1 for Rs. 650, the plaintiff himself not bidding at the sale as he could have legally done and without risk of loss to himself as all the surplus sale proceeds would have gone to him as the then recorded proprietor of the estate. Even assuming therefore that there was any equity in favour of the plaintiff it was destroyed by his own Lehes in omitting to pay up the arrears between the 18th and 25th of March, It was alleged in the plaint that the 25th of March was a Hindu festival and the Tleasury was closed and the plaintiff verbally tendered payment on the 26th. It has been found and is not denied that the Treasury was open on the 25th.
9. It has next been contended before us that in September 1901 the estate was under attachment by order of the Collector passed under Section 99 of the Cass Act (Bengal Act IX of 1880 and that under Section 17 of Act XI of 1859 the estata was not liable to sale for arrears accruing during such attachment. It has however been conceded before us that there was no valid attachment subsisting in January 1902, when the arrears for the January kist accrued and that therefore the sale of the 26th of March, which was a sale for the arrears of the January kist, cannot be impugned under Section 17. The learned vakeel for the respondent, without attempting to support the finding of the Lower Court on this point, contended that as the Collector was bound to appropriate the payment of Rs. 1% to the January kist, the sale of the 26th March could not be justified on the basis of the arrears of the September kist, because as regards those arrears the estate was protected from sale under the provisions of Section 17. In this connection the ruling of their Lordships of the Privy Council in the case of Rajah Gobind Lal Roy v. Ramjanam Misser (1893) L.R. 20 I.A. 163 has been referred to. We have however already held above that the Collee for acted within his right in crediting the payment against the September kist and that the estate was therefore sold, as evidenced by the Sale Proclamation, for the arrears of the January kist.
10. We think therefore that the judgment of the Lower Court cannot be supported either on the grounds dated in the judgment or upon the additional grounds, which have been urged before us; and that the contention of the appellant, that the sale of the 26th March 1902 was a valid sale for arrears of revenue, which had actually accrued, must prevail. No irregularity has been proved, and it has not been shown that the alleged iuadequacy of price was due to any irregularity.
11. We accordingly decree this appeal. The plaintiff's suit will be dismissed and the defendants appellants will get their costs in both the Courts.