Macpherson and Banerjee, JJ.
1. The plaintiff is the proprietor of a five-annas share of the estate referred to in the plaint. On the 21st March 1889, a 13 annas 8 gundas 3 cowries share of that estate, including the plaintiff's five-anna share, was sold by the Collector for arrears of revenue under the provisions of Act XI of 1859. This suit is brought to set aside that sale on the ground of the various illegalities or irregularities set out in the plaint.
2. The Subordinate Judge has dismissed the suit, holding that no illegality or irregularity has been proved.
3. It is now contended that the sale is bad on the ground that the notices prescribed by Sections 5 and 7 of Act XI of 1859 were not published, and this is the only ground which we need consider. Section 5 of Act XI of 1859 provides that no estate and no share or interest in any estate shall be sold for the recovery of arrears if such estate is under attachment by order of any judicial authority or managed by the Collector in accordance with such order, unless the special notification provided by that section has been published.
4. Section 7 provides for a prohibitory notice on the ryots and tenants of the estate in default, forbidding them to pay rent to the defaulting proprietor after the day fixed for the last days of payment. It is conceded that no notice under Section 5 was published, and that the estate had been attached; but it is contended that the attachment was not subsisting at the time when the arrear became due and when the estate was sold; and that it is necessary, as it undoubtedly is, in order to bring that section into operation, that the attachment should be a subsisting one.
5. The facts in connection with the attachment, which was effected in November 1886, are these : On the 14th December 1881, Ram Ganga Saha obtained a decree for a sum of money due on a mortgage bond against some of the defaulting proprietors. That decree was ex parte as regards some only of the defendants in the suit, and it declared that the money was a charge on the mortgaged property. In August 1886, the decree-holder took out execution of the decree, and in October of the same year, while the execution proceedings were pending, Mahomed Mazahar, one of the judgment-debtors, objected to the execution on the ground that the decree against him was ex parte, and that he was not bound by it. The Judge on his appeal set aside the ex parte decree as against him at least, and directed a new trial. The case was re-heard, but it is not clear whether the re-hearing was intended to affect Mahomed Mazahar only, or all the defendants in the suit. But, however that may be, on the 17th December 1887, the Munsif made a fresh decree as against all the defendants; and this decree practically superseded the decree which had been originally made. It was a decree for a different sum of money, and it directed that the mortgaged property should be sold in satisfaction of the decree if the amount was not paid within two months from the date on which the decree was signed. In January 1887, the Munsif before whom the execution proceedings were pending, made this order: 'The Appellate Court has reversed the lower Court's decree and has ordered the trial of the case. The execution proceedings may therefore be stopped. Case struck off.'
6. We think that the Subordinate Judge was quite right in holding that the attachment ceased to have effect. Whether the Court was right or wrong in making a fresh decree as against all the defendants, the fact remains that it did do so, and no further proceedings were taken by the decree-holder in connection with the execution case which was struck off' in January 1887. In the case of Puddomonee Dossee v. Roy Muthooranath Chowdhry 12 B.L.R. 411 : 20 W.R. 133 the Judicial Committee of Her Majesty's Privy Council considered the effect upon an attachment of the striking off of the execution case in which that attachment had been made, and came to the conclusion that no hard-and-fast rule could be laid down, and that each case must be dealt with by itself. Here we have no doubt that it was the intention of the Court that the execution proceedings should cease altogether pending the re-trial of the case, and that also from the circumstances must have been the impression of the decree-holder. Taking into consideration, then, the circumstance that the case was struck off on the ground that the execution could not proceed, that a new decree which practically superseded the old decree was made, and that that decree contained a direction for the sale of the property, a direction which rendered any further proceedings under the attachment unnecessary, we think it is clear that the Subordinate Judge has come to a right conclusion in holding that there was no subsisting attachment on this property. In this view it is unnecessary for us to consider whether the omission to comply with provisions of Section 5 of Act XI of 1859 was an illegality or irregularity. In the case of Gobind Lal Roy v. Biprodas Roy I.L.R. 17 Cal. 398 decided by a Division Bench of this Court, it was held to be an illegality. In the earlier case of Bunwari Lall Sahu v. Mohabir Persad Singh 12 B.L.R. 297 : L.R. 1 I.A. 89, which eventually went before the Judicial Committee of Her Majesty's Privy Council, the omission to serve a notice under Section 5 was treated its an irregularity only. The question whether it was an irregularity or illegality does not appear to have been raised before the Judicial Committee, whose decision turned upon the construction to be put upon the following words of Section 5: 'arrears of estates under attachment by order of any judicial authority or managed by the Collector in accordance with such order.'
7. As regards the notice under Section 7, there is a conflict of evidence as to whether this notice was or was not issued. We think that the question is immaterial, because the plaintiff has failed to prove what he was bound to prove under Section 33 of the Act, namely, that in consequence of the irregularity he has sustained substantial injury. Some evidence has been given and is unrebutted, that the property was sold for less than its real value; and there is no evidence to connect the inadequacy of price with the irregularity complained of under Section 7, and, as observed in the case of Gobind Chundra Gangopadhya v. Sherajunnissa Bibi 13 C.L.R. 1, no injury could have resulted to the judgment-debtor from the omission to serve the notice prescribed by that section; the only object and effect of such a notice being to prevent the tenants from paying rent to the defaulting proprietors. We think, therefore, that the appeal fails on the only grounds advanced before us.
8. We would say a word in connection with the inadequacy of price complained of by the appellant. We are not at all satisfied that this inadequacy was in any way attributable to any irregularity in publishing or conducting the sale. It appears that in February 1887, Omda Bewa Bibi obtained a decree against the present appellant and some of the co-sharers for possession of an eight-anna share in this estate after foreclosure of a mortgage. It is quite possible that this decree was a collusive one obtained in order to put the property beyond the reach of creditors; bat whether it was collusive or otherwise, the effect on intending purchasers might very well be to prevent them from bidding anything approaching the real value of the property. The estate was sold subject to all existing encumbrances, and even if the purchaser considered that he was in a position to get that decree set aside, he purchased the property knowing almost to a certainty that he purchased it subject to a law suit.
9. There is one other point, and that is as to the costs which the lower Court allowed to the defendants. Five sets of costs were allowed. One of them was in favour of the Secretary of State, and with that we think there is no ground for our interference. The remaining four sets have been allowed to different defendants who had put in an appearance by different pleaders, but their defence was substantially the same. We think that there was no occasion for the Court to allow these defendants separate costs amounting in all to a very considerable sum. The amount awarded in the lower Court as the costs of the Secretary of State will stand, but the decree, in so far as it allows the sum of Rs. 300 to costs of the remaining four sets of defendants as pleaders' fees, will be set aside, and in substitution of that sum we allow a total sum of Rs. 600 for pleaders' fees, which will be divided equally between them.
10. As regards the costs in this Court, the respondents who have appeared will get one set of costs.