1. This is a suit to set aside a sale held in execution of a certificate issued by the Collector.
2. The plaintiff alleges that no notice under Section 10 of the Act was issued to him, that the proceedings connected with the sale were irregular, that the purchaser at the sale, the defendant No. 2, is a benamidar for the defendant No. 1, who, along with the defendant No. 3, was jointly liable with him (the plaintiff) for the debt for which the certificate was issued, and that, as the defendant No. 1 is the real purchaser of the property, he is bound in equity to reconvey to the plaintiff the plaintiff's share in it, which was sold. Both the lower Courts have decided that the suit was not maintainable, as the suit is not one to set aside the certificate, and as the certificate has become absolute, no steps having been taken to cancel it within the time prescribed by the law for the purpose. Hence, they held the sale cannot be set aside.
3. The plaintiff appeals. On his behalf it is contended (1) that the suit is maintainable, as it is alleged that no notice under Section 10 of the Act was served on the plaintiff, and that this question should have been enquired into; (2) that there were irregularities in the sale; and (3) that, if the defendant No. 2 is the benamidar of the defendant No. 1, the latter is bound to reconvey to the plaintiff.
4. The view taken by the lower Courts would seem prima facie to be in strict accordance with the law as laid down by Act I of 1895. But the rulings of this Court seem to have interpreted the law differently and it has certainly been decided in Chunder Kumar Mukerjee v. Secretary of State (1900) I.L.R. 27 Cal. 698 that a suit to set aside a sale for arrears of cesses on the ground that no notice of the certificate, under Section 10 of Act VII of 1380, was served upon the plaintiff, is maintainable in the Civil Court. This would seem to mean that such a suit is maintainable, even if the certificate has become absolute. This was followed by the majority of the Full Bench which decided Ram Tarak Hazra v. Dilwar Ali (1901) 5 C.W.N. 521 These oases were no doubt cases in which the certificate was issued under Act VII of 1880, and in this case the law applicable is Act I of 1895. But the wording of Section 10 in both acts is almost identical and there would seem to be no ground for distinguishing the present case.
5. The decree of the lower Court must, therefore, be set aside and the case remanded for decision of the other issues arising in it.
6. The respondent, however, urges that the suit is barred by Section 244, which is applicable to the case under Section 21 of Act I of 1895. But the law applicable is Section 21 before its amendment by-Act I of 1897. Hence, it would seem as if, as held by the Division Bench that ultimately decided the case of Ram Tarak Hazra v. Dilwar Ali (1901)5 C.W.N. 521 though with regard to Section 19 of Act VII of 1880, which corresponds to Section 21 of Act I of 1895, that Section 244 applies only so far as the procedure to be followed in execution proceedings to enforce the certificate and realize the amount thereunder is concerned, and that it is not applicable in its entirety and does not apply so as to bar a separate suit for setting aside the sale. We must not, however, be understood as ruling that this is the effect of Section 21 of Act I of 1895 as amended by Act I of 1897.
7. We accordingly set aside the decree of the Lower Appellate Court and remand the case to it. It should remand the case to the Court of First Instance to decide' the other issues arising in it. The appellant is entitled to his costs in this appeal.