Richard Garth, C.J.
1. In this case, which we heard yesterday, the suit was brought to set aside a revenue sale under Act XI of 1859.
2. For this purpose the plaintiffs relied upon certain irregularities, which are said to have occurred in carrying out the sale itself: and also, as the plaintiffs alleged, that their tehsildar had colluded with the servants of the defendant No. 1, who was the purchaser, to make default in payment of the revenue so as to bring about the sale of the property, and enable the defendant No. 1 to buy it at a low price.
3. The lower Court dismissed the suit upon the ground that the alleged irregularities were not (for various reasons) available to the plaintiffs; and with regard to the alleged fraudulent collusion the Court said this:
It was argued that there was fraud on the part of the purchaser at the sale, inasmuch as he colluded with the servant of the plaintiffs, who made default in the payment of Government revenue; but under Section 33, Act XI of 1859, no sale can be set aside on the ground of fraud, so no issue was raised upon that point. If there was any fraud, on the part of the plaintiffs' servants, or the defendant No. 1, the plaintiffs might sue them for damages if they liked.
4. On appeal to this Court two points only have been argued with regard to the alleged irregularity, which we think it necessary to notice.
5. It is said that the notice in the Sudder Cutchery was served on the 1st of March 1880, and the sale was advertised for the 30th of March; and as, therefore, notice was given less than 30 days before the sale, it was contended that the sale was bad. In support of that view a decision was referred to of Justices Mitter and Norris in Bal Mokoond Lal v. Jirjudhun Roy I.L.R. 9 Cal. 271.
6. With this decision we entirely agree. But we find that: this point was neither taken in the proceedings before the Commissioner, nor in the plaint in this suit, nor before the lower Court. And when we come to enquire into the facts, it is pretty clear why it was not taken, because it appears that the notice in question was not one of the two principal notices which have to be stuck up, the one in the Collector's Cutchery and the other in the District Court, but the notice which has to be put up in the Sub-divisional Court, under Beng. Act VII of 1868 with regard to which no particular time is mentioned. We think, therefore, that there is nothing in this point.
7. Another irregularity complained of was, that the names of certain mouzahs, which were included in the property, were not specified in the sale notification.
8. We think it clear, however, that the Subordinate Judge was quite right in the view which he took of that objection. He says that it is only necessary to specify the estates or shares of estates in. the sale notification, and the number which they bear in the Collector's office. It was not necessary to specify the names of the mouzahs which were included in the property.
9. Then, as regards the allegation of fraud, as that point is of a novel character, and we have been referred to some authorities upon it, we think it right to notice it more particularly.
10. The lower Court took such strong view upon the subject that it refused to frame any issue, or to receive any evidence with reference to it.
11. The Subordinate Judge considered that Section 33 of the Act of 1859 prohibited any suit being 'brought to set aside a sale on the ground of fraud.
12. The section says: 'No sale for arrears of revenue shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act; and as the Act says nothing about fraud, it would seem that the Legislature intended that no sale should be set aside on that ground.'
13. It is not necessary for us to go the length of saying that under no possible circumstances (such for instance, as fraud on the part of the Collector or his officers) could such a suit be brought; but when we consider the way in which the alleged fraud is sought to be used in this case. We think it clear that it could be no ground for setting aside the sale.
14. The sale is one made by the Government; and it is not suggested that the Government or its officers had anything to do with the fraud. The fraud alleged is, that the sale was brought about by the plaintiffs' servant making default in payment of the revenue in collusion with the servants of the defendant No. 1. The appellants' pleader contended that a revenue sale might be set aside on the ground of fraud; and in support of that view we were referred to a case of Joy Doorga Debia v. Gopal Chunder Banerjee 9 W.R. 538 decided by Justices Jackson and Mitter, in which Mr. Justice Jackson says: 'This suit in point of form was a suit to set aside a sale in the Collector's Court. There is authority for the opinion that a sale by order of a Revenue Court can be set aside by a decree of the Civil Court' upon the ground of fraud, this having been directly ruled by a decision of the Full Bench in the case of Nilmani Burnick v. Puddoloohun Chuckerbutty B.L.R. Sup. Vol. 379 : 5 W.R. Act X, 20.
15. But when we refer to that Full Bench case we find that the learned Judge could not quite have apprehended its meaning; because no question arose there as to setting aside a revenue sale. The question was, whether, when a decree in the Collector's Court had been obtained by fraud, a Civil Court could, in a regular suit duly constituted for that purpose, set aside the decree, whether, in fact, a fraudulent decree in the Collector's Court could be set aside by the Civil Court, and the Full Bench decided that it could. But this has nothing to do with setting aside a revenue sale on the ground of fraud. In fact, there is nothing in that decision, as far as we can see, which has the least reference to revenue sales.
16. The case which more nearly supports the plaintiffs' views in point of law is one of Bhoobun Chunder Sen v. Ram Soonder Surma Mozoomdar I.L.R. 3 Cal. 300 decided by Justices Birch and Mitter. In that case one of several co-sharers had brought about the sale of a revenue paying estate, by not taking steps, as he was bound to do, to prevent the sale. In this he was: found to have acted fraudulently to his co-sharers, and in order that he might buy up the whole property himself at a small price. The suit was brought to set aside that sale, and the Court below made a decree to that effect; but when the case came up here on appeal, we find that both learned Judges considered that the sale itself could not be set aside.
17. Mr. Justice Mitter says': 'Although in the plaint there is a prayer for reversal of the auction sale, I do not think that under the circumstances of the case that prayer can be granted;' and the decree made by the Judges' was, to the effect that as between the parties the defendant, who bought the properties' in fraud of his co-sharers, should reconvey it to them upon being paid his purchase-money; or, in other words, that the defendant should take nothing by his purchase, and that the parties should be placed in the same position inter se as they were before the sale, Whilst, therefore, this Court refused to set? aside the sale, it gave the plaintiffs the relief which they sought, by restoring them to their former position..
18. It is possible, that in this case, the plaintiffs may have a similar cause of suit, as between them and the defendant No. 1, founded upon the fraud, which they allege in the plaint. But if so, that is not a claim of which they could avail themselves in the present suit; because they here sue to set aside the sale on various grounds of irregularity and illegality in the sale itself.
19. If the plaintiffs wish to avail themselves of the fraud which they allege, they must make it the subject of another suit; and we think we ought to allow them an opportunity of doing so.
20. We, therefore, give them leave to bring another suit of that nature, though of course we say nothing as to their prospect of success.
21. This appeal will be dismissed with costs.