B.B. Ghose, J.
1. This is an appeal by defendant 1 against the judgment and decree of the Subordinate Judge, Second Court Pabna, setting aside a revenue sale. The facts are these : There was an estate touzi 10. Defendants 2 to 11 who are the respondents in this Court opened a separate account No. 10/6 They mortgaged their interest in this separate account along with some other poperty to the plaintiff company who are respondents along with the other defendant. It is not necessary to state in detail the provisions of the mortgage-deed. A suit was brought on the mortgage by the plaintiff company which was Suit No. 125 of 1918. They obtain a decree and a sale proclamation was issued in execution of their mortgage decree by the Subordinate Judge on 2nd October 1923. The property was sold and purchased by the plaintiff company on 19th November 1923. Eight applications were made by the several judgment-debtors for setting aside the sale. There was default in payment of the revenue of the estate in the separate account No. 10/6. The 12th January 1924 was the last date of payment and the amount due on that date was Rs. 35-2-0. On that date however the general account of estate No. 10 showed that there was an excess credited to the account of the estate to the extent of seven annas. Therefore nothing could be done as to the sale of the separate account for arrears of revenue on account of that default. The next date for payment of revenue for the 'subsequent quarter was 28th Mason 1924. On 27th March 1921, that is, on the previous date, the proprietors of the separate account No. 10/6 paid the amount due for that kist for that separate estate which was Rs. 20-13-0. On 28th March, however, there was arrear of revenue due in general account of the estate No. 10 to the extent of six annas and five pies, so there was an arrear of revenue due on account of the estate No. 10 for which the estate was liable to be sold. On 22ad May 1921 the Collector issued a notification for sale of the separate estate No. 10/6 for arrears due to the extent of Rs. 35-2-0 the amount due on it for the January lust and the separate estate was sold on 26th June 1924, and purchased by defendant 1 for Rs. 2,050. There was an application under Section 25 of the revenue sale law to the Commissioner by the plaintiff company. That was rejected. The sale was confirmed and the sale certificate was issued in favour of defendant 1 on 10th December 1924. In the meantime the applications that were made by the judgment-debtors in the mortgage suit for setting aside the sale of their properties in execution of the mortgage decree of the plaintiff was settled on compromise on 16th June 1924. It is not necessary for the present purpose to state the terms of the compromise in detail. It is sufficient to say that the sale was set aside with regard to some of the properties. It was confirmed with regard to some and certain stipulations were entered into between the parties for the debt to be considered to have been paid off in certain circumstances.
2. The present suit was brought on 10th July 1925. The defaulting proprietors were made defendants, but they take no interest in the litigation. The only contending parties are the plaintiff company and defendant 1. The Subordinate Judge has decreed the suit on several grounds. They are as follows:
(1) That there was no arrear due for the March kist of 1924 for this separate account No. 10/6. The sale was, however, effected for the March kist as shown by the Rubakari and the notification of the Collector. Therefore the sale was without jurisdiction;
(2) As the plaintiff had obtained a decree on their mortgage a notice was necessary under the provisions of Section 5, Act 11, 1859 : see paragraph commencing as thirdly, and as no such notice was served there was a serious irregularity;
(3) Notice under Section 6 was not served before 30 days of the sale as required by Section 6, Act 11, 1859. That the name of tha proprietor was wrongly given as Rai Saheb Girish Chandra Bagchi, whereas it was known at the Collector's office, that he was not the proprietor. This misled the plaintiffs and, therefore, payment was not made. It was also held that service was not effected on the properties;
(4) Notices under Section 7 of the Act were not served. These irregularities caused substantial injury to the plaintiff as the property was sold at an inadequate price.
3. There was another prayer in the plaint that a declaration might be made if the sale is not set aside that defendant 1 has purchased the property subject to the mortgage lien of the plaintiffs. This was an alternative prayer and the Subordinate Judge held that if he had not set aside the sale he would have granted the alternative prayer in respect of the properties of which the sale has been set aside by the compromise dated 16th June 1926.
4. I propose to deal with the points separately. The learned advocate for the appellant has contended that the Subordinate Judge is wrong in his conclusion with regard to every one of the questions. His contention is that with regard to many of the questions under the third head decided by the Subordinate Judge the plaintiffs did not specifically raise the objections in their petition of appeal before the Commissioner; for instance they never urged as a ground before the Commissioner in their appeal that the name of the petitioner has been wrongly given; nor did they allege that notices had not been served on the various properties. What the plaintiffs said in ground No. 4 in their grounds of appeal was that the sale was held less than 30 clear days from the date of affixing the notification under Sections 6 and 13 of the Act in the office of the Collector, but no other point was taken. There seems to be a good deal of substance in the contention. But apart from this, there is nothing to show that as a matter of fact notices were not served according to law. There is no evidence in support of the allegation of the plaintiffs. On the other hand it will appear from Ex. F and Ex. E, that notices were served on 23rd May 1924. The peon who served the process was called by the plaintiffs to prove service of process in the mortgage suit. But no question was put to him as to whether he had actually served the notice in question or not. It was suggested is the judgment of the Subordinate Judge that it was the duty of defendant 1 to get this fact from the peon I do not think that the Subordinate Judge was right in so holding. When there was an affidavit of the peon of proper service of notice, the party who impugns the fact ought to have proved that there was no service. The plaintiffs fought shy of the question for the obvious reason that there was no substance in their plea. Therefore it must be taken as a fact that there was service as proved by the various returns Ex. P, Ex. E, Ex. 4(f) and Ex. H, and therefore this objection on the part of the plaintiff is untenable. There is one matter in this connexion which I think I ought to state here. In Ex. 4(e), which is a copy of the Rubakari of the Collector ordering service of notification for sale of the property in question on 26th June 1924, there are some entries at the top showing certain demands on the property for cesses and so forth. These demands were made under the Public Demands Recovery Act for which a certificate was filed on 2nd June 1924. This appears from Ex. 9(b) and Ex. 11(a).
5. The Subordinate Judge argues from this fact that the notification must have been issued subsequent to the 2ad June 1924 and therefore the whole story of service in May must be entirely false. It does not appear, however, from the evidence as to who made the entries on the top of the Rubakari Ex. 4 (e) and when. It cannot be conceived for a moment that these entries were made by the Collector who signed the Rubakari on 22nd May 1924, or the Deputy Collector who asked for an order for the notification on 20th May 1924. Who then made the entries and when? The Subordinate Judge assumes that these entries must have been made before the notice was made over to the peon for service. A person was called from the collectorate. No question was put to him about this. The defendant made a prayer to the Subordinate Judge to recall the witness so that questions might be put to him as regards this matter. That was refused. The entries appear in the certified copy. Whether they wore made by some person after the certificate was lodged for the purpose of calculating as to how much was due from that particular estate so that the money might be realized from the surplus sale proceeds or for any other purposes, these questions are left wholly uninvestigated, and I cannot agree with the opinion of the Subordinate Judge that purely because there are these entries made on the top of the Rubakari the whole story of due service of process must be disbelieved. So much for the third point as regards service of notice under Section 6. My conclusion is that it has been satisfactorily proved that the notices were properly served and there was no contravention of the provisions of Section 6 of the Act.
6. The fact that the name of the proprietor of this separate estate was given as Rai Saheb Girish Chandra Bagchi appears in Ex. G, the notification for bale. The Subordinate Judge says that the people in the collectorate knew that the interest of Rai Saheb Girish Chandra Bagchi in the property ceased some time in August 1923 and therefore it was a grave irregularity on the part of the Collector to insert the name of the Rai Saheb as the proprietor of the property in the sale notification. It appears from Ex. 10 that a certificate was filed by public demands with regard to this property, and apparently the Rai Saheb was said to be the certificate debtor (which was contracted into C.D., but wrongly elaborated as Collector's Department). It appears from Order 10, dated 16th April 1924, that the certificate-debtor had transferred his interest to Joy Durga Devi on 14th August 1923. The Subordinate Judge next says that the certificate was issued on 2nd June 1924 in the name of Joy Durga Debi, that is, Ex. 9(b), and therefore it was wrong on the part of the clerk in the Collectorate to insert the name of the Rai Saheb in the notification for sale Ex. G. But it appears that the name of Rai Saheb is registered in Register. D of the Collector. This appears from the evidence of witness No. 3 for the defendant, and also in the evidence of defendant's witness No. 1 Atul Chandra Bhattacherjee, who were cross-examined on the question on behalf of the plaintiff. The Collector in giving the name of the owner of an estate which is sought to be sold was quite right in giving the name which was in the D register, and it was not an irregularity to put in his name; nor does it appear that the plaintiffs made any grievance of the fact that on that ground they were unable to pay the arrears due. Besides, it seems to me that this irregularity, if there is any, has not been shown to have caused any substantial injury to the plaintiff. This disposes of point No. 3.
7. With regard to the 4th point, assuming that notices under Section 7 of the Act were not served, I do not think that the sale can be vitiated on that account. Notices under Section 7 are only for the purpose of forbidding the tenants from paying their rent to the defaulting proprietor. If such notice is not served and the tenants pay the rent due to the defaulting proprietor, then it would be a question whether the auction-purchaser would again be entitled to recover that rent. It is not a question between the defaulting proprietor and the Collector as to whether notice under Section 7 was served or not. It is unnecessary to elaborate the point as in my opinion it is neither an irregularity nor an illegality which can vitiate a sale if hotiees under Section 7, Act 11, 1859 are not served.
8. The next question which I take up is question No. 2 as to service of notice under Section 5 of the Act. Section 5 of the Act requires that a notification should be made specifying the amount of the arrear or demand of certain descriptions and the latest date on which payment thereof shall be received for a period not less than 15 clear days preceding the date fixed for payment according to Section 3 of the Act, in certain places and paragraph 'thirdly' specities
arrears of estates under attachment by order of any judicial authority or managed by the Collector in accordance with such order.
9. The learned Counsel on both sides admit that there was no date fixed for payment of the arrears according to Section 3 of this Act in this case. What was admitted by both parties before us is this : that the arrears fell due and were payable on 12th January and on 28th March, and if not paid by sunset of those dates the property would be liable to be sold. If that be so I do not see how any notification can be affixed as required by the first part of Section 5 of the Act. In that view it seems to me that that section would not be applicable to the particular facts of this case; and the learned advocate for the respondent was unable to explain to us how upon his own statement that there was no date fixed for payment under Section 3 of the Act it was possible for the Collector to affix any notification as directed by Section 5 in this case. Then again as this point has been argued before us by both sides, I think I ought to record my opinion as to the proper interpretation of the paragraph beginning as 'thirdly' of that section. It refers to arrears of estates under attachment by order of any judicial authority. The Subordinate Judge has referred to Note 4 under that section in the Board's Manual which runs thus:
In mortgage decrees when the decree contains a direction to sell, such decrees have the force of an attachment and hence formal attachments are unnecessary; but the revenue Courts get notice of such decrees when the sale proclamations are issued under Section 289, Civil P.C., (Order 60, Rule 67 of the Code of 1908), and should then consider the estate as being under attachment by judicial authority and issue notices prescribed by this section.
10. The reference is Board's Miscellaneous proceedings of 11th May 1895. It is argued by the learned counsel for the appellant that the words of the Act are 'under attachment by order of any judicial authority'. An order for sale or sale proclamation issued under a mortgage-decree is not an order for attachment under judicial authority, and it is wrong to say that an order for sale has the effect of such attachment, and therefore this paragraph of Section 5 of the Act has no application to a sale proclamation. True, it seems to be somewhat anomalous that a mere attaching creditor would be entitled to have notice served under Section 5, but not a mortgagee who has got a contractual lien on the property. Attachment is only a judicial lien and does not confer any interest on the property; whereas a mortgage creates an interest in the property itself. As I have already said the position seems to be anomalous. But one cannot extend the meaning of the words 'under attachment by order of any judicial authority' as meaning an order for sale in execution of a decree on a mortgage. It may be expedient to serve notice under Section 5 when a mortgage has been found to be a good one by judicial decision, and very rightly the Board has directed the revenue authorities to serve notices as prescribed by that section. But it cannot be said that if such notices are not issued, where there is no order of attachment by any judicial authority, the law has been contravened On this point I am unable to agree with the decision of the Subordinate Judge.
11. Now there remains the first point which to me seems to be the most important of all, and to my mind it is not free from difficulty. The question must be answered with reference to Section 13 of the Revenue Sale Law. That section runs as follows:
Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up to sale only that share or those shares of the estate from which, according to the separate accounts, an arrear of revenue may be due.
12. The learned Subordinate Judge Las upon the facts which I have already stated found that there was no arrear due on account of the March kist for this separate account. Therefore the sale for the March kist which the Collector ordered was without jurisdiction there being no arrears left. The learned Subordinate Judge took some trouble in finding that the sale was held for arrears of March kist, and he found that the March kist having been paid by the defaulting proprietor of the separate account No. 10/6 there was no arrear due. There was some argument before us on behalf of the appellant as to whether the sale could be said to have been held on account of the March kist. Reference was made to the sale notification in which it is not stated for which kist the property was going to be sold. That notification was in accordance with the form sanctioned by the Government, and no kist for which the sale is to be held is mentioned in that form. The Subordinate Judge, however, refers to the Rubakari Ex. 4(e) and Ex. 8. It is entered there that the sale is to be for the March kist of 1924, and that is also to be found in Ex. F which is described as hukumnama, order of the Collector on the Nazir dated 23rd May 1924. On these documents the Subordinate Judge based his conclusion that the sale was bad for an arrear of revenue for the March kist of 1924, and as there was no arrear of revenue for the March kist of 1921 the sale was without jurisdiction.
13. The question is whether under the circumstances of this case the separate account No. 10/6 could be sold for arrears of revenue which was undoubtedly unpaid on 12th January 1924 for this separate account. As I hive already pointed out the property could not have been sold for the arrears in January, because the estate was not liable to be sold on that date there having been an excess payment of 7 annas on account of the estate, although this particular separate1 account was in default. On the expiry of 28th March 1924, the estate was liable to be sold because there was an arrear of 6 annas 5 pies for the estate. Now when the Collector found that there-was an arrear due for the estate and the estate was liable to be sold, what was he next to do? He had to find, when there are separate accounts, which separate account or which number of then were in arrears. The Collector had to see the shares of the estate from which arrear of revenue was due. Now turning to his books he would find that no arrear was due for March from estate No. 10/6. The question then is : Was he entitled to go back and fin I that this separate account or any other separate account was in arrear on any pervious date in the course of the year? The learned Counsel for the appellant argues that he was so entitled, while the respondent contends that he was not. This seems to be the crucial point in the case, and it seems to me that the respondent's contention should be given effect to. Suppose there were two or more separate accounts, as in this ca3e there are several. No. 10/6 was not in arrears in March. But suppose No. 10/1 was in arrear in March and 10/6 was in arrear in January. Which of the two properties should be sold, or should both be sold? and then, going a step further, could the Collector go beyond that date and find if is September soma other separate share was in arrear? To my mind that would lead to confusion.
14. The simple construction, therefore, should be that when an estate is in arrear the Collector should look to his books to find which of the separate shares or which number of them was in arrear for that kist. If no separate share is in arrear for that kist the entire estate is liable to be sold, but no separate share can be sold for an arrear of a pre vious kist. It is further contended on behalf of the respondent that the do-fault in payment of revenue of the share of 10/6 in January was not an arrear of revenue' because the estate was not in arrear. If the estate was not in arrear, then the separate account could not be sold on account of the default of the proprietor of the separate account 10/6 for the January kist under Section 13. This has also been explained in B. 90 at p. 281 of the Manual of Revenue and the Patni Sale Laws published under the authority of the Board of Revenue in 1928. Reference has been made on behalf of the respondent to the case of Mahomed Jan v. Ganga Bishun Singh  38 Cal. 537. That case has some bearing upon the present case, in which it was held that if no arrear was due for the kist for which an estate was sold, the sale was without jurisdiction. I am of opinion that the disputed share could not be sold for the arrear of the estate for the March kist.
15. Under these circumstances it must be held that on the first ground this appeal fails and should be dismissed. I should add that with reference to the alternative prayer of the plaintiffs that it is not maintainable. If the plaintiffs had any right as mortgagees they might bring a suit for enforcing their right and ask for any consequential relief in a properly framed suit. Their prayer for the declaration they have asked for cannot be maintained, and if I hold that the sale was a good one their prayer for the alternative relief would have been refused. In the result this appeal is dismissed. There will be no costs either in this Court or in the lower Court to either of the parties, as the plaintiffs had unnecessarily prolonged the hearing by raising untenable grounds on the facts.
16. I agree.