Tottenham and Gordon, JJ.
1. This was a suit to set aside a sale of certain property for arrears of Government revenue. The property in question is an estate known as Mehal Khurd Muradpore, and it was sold by the Collector of Rungpore on the 26th of June 1886 for Rs. 6,500.
2. The plaintiffs are the executors to the estate of the late Bhagirat Das, the son of Bhuban Mohan Das deceased, who was the mortgagee of an eight-anna share of the property sold; and the principal defendant Raja Gobind Lal Roy is the auction-purchaser. The defaulting proprietors of the estate, Ramjanam Miaser and Mahomed Zakaria, who are the successors in interest of the original mortgagors, have also been made defendants, because they declined to join with the plaintiffs in bringing this suit. There are also other defendants, including the Secretary of State, who however did not appear, and may therefore be left out of consideration in this appeal.
3. Sometime after the institution of the suit, the defendants Ramjanam Misser and Mahomed Zakaria applied to the Court to be made co-plaintiffs, but the Subordinate Judge, before whom the case was pending, refused their application on the ground that it was made more than a year after the date on which the sale had become final by law, and therefore it was too late.
4. The plaintiff's case is substantially this: In 1886 they brought a suit against the original mortgagors and other persons having an interest in the mortgaged property to recover the money due under the mortgage by sale-of the property in question. Pending the decision of that suit, the property Khurd Muradpore was, as I have just said, sold for arrears of revenue on the 26th of June 1886. On the 10th December 1886, the plaintiffs' suit was decreed against the original mortgagors; but the mortgaged property, which had already been sold by the Collector, was exempted from liability under the decree. At the same time this farther order was made in the decree: 'that in case the plaintiffs shall succeed to have the auction sale of Khurd Muradpore set aside by instituting a regular suit or otherwise, they shall be able to revive their claim to make the said Khurd Muradpore liable under this decree.' The plaintiffs, then, being unable to enforce their lien in consequence of the sale of the mortgaged property for arrears of revenue, and their appeal to the Commissioner against that sale having been dismissed, now ask to have the revenue sale set aside on certain grounds set out in the plaint, and for a declaration that the property in question is liable to be sold for the debt due to them under their mortgage. They further pray that, if the sale be not set aside, the defendant Gobind Lal Roy may be made liable in damages on the ground that he is the chief wrong doer in the case, because his agent by saying he would bid up to fifty or sixty thousand rupees dissuaded intending purchasers in attendance from offering bids. The plaintiffs say that the sale is illegal and was made without jurisdiction: because, firstly, no notification was issued by the Collector as required by Section 5 of Act XI of 1859, and, secondly, that the estate at the time of sale was under attachment for arrears of road-cess under the Cows Act, and that it was sold for arrears of revenue which accrued during such attachment, and that these irregularities caused the property, which was worth about sixty thousand rupees, to be sold for the small sum of six thousand and five hundred rupees, thereby causing them substantial injury.
5. The defence set up by the auction-purchser is that the plaintiffs as mortgagees art; not entitled to bring this suit; that they cannot enforce their lien against the martgaged property, when that property was exempted from liability for the mortgae-debt in the previous suit No. 19 of 1886; that the sale is legally valid and is protected by his sale-certificate; that in their appeal to the Commissioner the plaintiffs did not object to the irregularities now set out in the plaint and therefore they cannot now ask to have the sale annulled on the ground of those irregularities; and, lastly, that the property was sold for an adequate price.
6. The proprietor defendants Nos. 3 and 4 support the plaintiffs, and say that the sale was illegal and ought to be set aside.
7. On these pleadings the Subordinate Judge framed twelve issues; and having decided the substantial issues in favour of the plaintiffs, he has decreed their suit, that is, he has ordered the sale to be set aside, and the mortgaged property to be sold under the plaintiffs' mortgage-decree of the 10th of December 1886.
8. The auction-purchaser appeals But before considering his grounds of appeal it will be convenient here to say that, when the appeal was first called on for hearing before this Court on the 29th of July last, Mr. Evans, on behalf of the plaintiffs-respondents, represented that an arrangement had been come to between Mr. Woodroffe, counsel for the Appellant, and himself, that the plaintiffs-respondents should withdraw all opposition to the appeal, and consent to the appeal being decreed on certain terms. And Mr. Evans, accordingly, on the above mentioned date, made a formal application to the Court that the appeal should be decreed in accordance with the terms arranged; and this application was recorded. But at the same time the pro forma defendants-respondents, Ramjanam Misser and Mahomed Zakaria, claimed to be heard in opposition to the appeal and in support of the judgment and decree of the lower Court; and the Court decided that it would hear the appeal as against them on a future date, to which the appeal was then adjourned. Subsequently, on the appeal being called on the 12th of August, Mr. Evans informed the Court that the appellant had repudiated the aforesaid agreement, but as his clients considered it to be binding and conclusive, he would not appear and oppose the appeal, and, on the following day, Mr. Evans filed an affidavit setting out the circumstances of the arrangement and the view his clients took of it. On a subsequent day, in answer to a Rule issued on the appellant, his counsel, Mr. Woodroffe, filed certain correspondence, and at the same time certain letters were put in by the pleader for the appellant; and all these papers have been, at Mr. Evans' request, placed on the record.
9. With these observations, which we have thought it necessary to make in order to explain why the plaintiffs' counsel did not appear to oppose the appeal, and as showing that his and their conduct in that matter was both proper and honourable, as also that of the learned Counsel, Mr. Woodroffe, for the appellant, we now proceed to consider the various points argued before us by the learned Counsel for the appellant.
10. The points are these:
(1.) The plaintiffs as executors of a mortgagee, and, not being in possession of the property sold, are not entitled to bring this suit.
(2.) The plaintiffs' suit No. 19 of 1886, for a declaration of their right to sell the mortgaged property, having been practically dismissed by the exemption of the mortgaged property from sale, a second suit to enforce their lien will not lie.
(3.) That Section 5 of Act XI of 1859 does not apply to the present case, because the property sold was not under attachment at the time of sale; and that even if there was any irregularity in not publishing the notification required by that section, that irregularity was cured by the provisions of Section 8 of Bengal Act VII of 1868.
(4.) That the provisions of Section 17 of Act XI do not apply, because the property was in fact not under attachment by the Revenue authorities when the arrears accrued.
(5.) The grounds on which it is now sought to set aside the sale were not declared and specified in the appeal to the Commissioner, and, therefore, under Section 33 of Act XI the suit will not lie.
(6.) There is no proof that the plaintiffs have sustained substantial injury by reason of the irregularities complained of, and, therefore, under Section 33 the sale cannot be annulled.
11. We will consider these objections in the order in which they are stated:
(1.) As regards the first objection, we think that the Subordinate Judge is right in the view he took that a mortgagee can maintain a suit like the present. Sections 33, 34* and 35 of Act XI of 1859 are relied on as showing that only a person who his proprietor can bring a suit under the Act to set aside a sale. But we do not think that there is anything in these sections that warants the inference that a right to sue is limited to proprietors only. Clearly the plaintiffs have an interest in the property in suit, inasmuch as that property is their security for the debt of the mortgagors, and if, as they allege, they have been deprived of this security by the illegal sale of the property by the Collector, we see no reason why, in the absence of any express provision of law to the contrary, they should not be entitled to ask the Court to grant thorn relief by declaring that the sale is illegal and inoperative as against them. We are not aware of any authority in which this particular point has been expressly decided. But there is a judgment of the Privy Council [Watson v. Sreemunt Lal Khan 5 Moore's I.A. 447 under the old sale-law, Regulation XI of 1822, in which it was laid down that the right to impeach the sale of land for arrears of Government revenue extended not only to the defaulting proprietors, but also to derivative holders under them, that is, in the particular case before their Lordships, to permanent leaseholders or istamrardars. And this too was the view of the Privy Council, although Section 23 of Regulation XI empowered proprietors only to contest the validity of such a sale. This we think is a clear authority in favour of the view that persons other than proprietors, who had an interest in property antecedent to its sale, could under that Regulation maintain a suit to impeach the validity of the sale: and a fortiori will such a suit lie under the present sale-law, in which the language used (see Section 53 of Act XI of 1859) is of a more general nature. We are accordingly of opinion that this suit will lie; and we decide this point against the appellant.
(2.) The second objection is that the plaintiffs' suit No. 19 of 1886 for enforcing their lien against the property having been practically dismissed, a second suit for the same relief cannot be maintained: and in support of this contention certain cases are relied upon viz., Watson & Co. v. The Collector of 'Zillah Rajshaye 13 Moore's I.A. 160 : 3 B.L.R. P.C. 48 : 12 W.R. P.C. 43 and Sukh Loll v. Bhikhi I.L.R. 11 All. 187. But we do not think that these cases are on all fours with the present case. In the first place, the present appellant was not a party to suit No. 19 of 1886, and therefore there can be no question of res judicata as between him and the plaintiffs. Further, if the sale be set aside, the appellant will cease to have any right to the property, and will therefore not be affected by a declaration of the plaintiffs' lien on it. Again, the defaulting-proprietors raise no objection to the form of the plaintiffs' suit. On the contrary, they support the plaintiffs and wish the sale to be set aside; so that, having regard to this fact as well as to the state of things existing when the decree of the 10th December 1886 was passed, which absolutely precluded the Subordinate Judge from directing the mortgaged property to be sold, we think that this objection ought not to prevail.
(3.) The third objection is that, as admittedly the property was not under attachment by order of any judicial authority at the time of sale, Section 5 of Act XI does not apply. We think, however, that there is nothing in that section which indicates that the property sold for arrears should be under attachment at the time of sale. The object of the notification prescribed by Section 5, as pointed out in a decision of the Privy Council in Bunwari Lal Sahu v. Mohabir Pershad Singh 12 B.L.R. 297 : L.R. 1 I.A. 89, 104, is to give timely information to an attaching-creditor that the property is in arrears, so as to enable him to step in and pay the revenue before the latest date of payment, and so to save the property from forfeiture and sale. If, therefore, a property is in arrears, and is also under attachment by order of any judicial authority, it seems to us that, having regard to the provisions of Section 5, the Collector could not legally sell it without first publishing a notification of the arrears not less than fifteen clear days prior to the latest date of payment; and in this view, it is immaterial whether the attachment was or was not subsisting at the time of sale.
12. The question then for decision in connection with this objection is whether the facts proved in the present case bring it within the purview of Section 5. Now the facts are these: One Sham Chunder Roy obtained a decree against the proprietor Ramjanam Misser; and, in execution of that decree, Ramjanam's interests in the Mehal Khurd Muradpore were attached by an order of the Munsif, dated the 12th of September 1885, and the mehal remained under attachment until the 13th of March 1886, when the decree-holder having neglected to deposit the Court-fee required for the publication of the sale-proclamation, the execution case was dismissed. On the 22nd of March 1886, the order of dismissal was set aside, and the execution case was restored to its number, and the attachment which was thus revived continued to subsist up to the 18th May 1886, when the decree having been fully satisfied the case was finally disposed of. It is clear from these facts that the property was under attachment by order of the Munsif for the whole of the period during which the arrears of revenue accrued, including the arrear of Falgoon 1292 which fell due on the 1st Cheyt 1292 (13th March 1886), for the realization of which it was liable to be sold; and therefore the Collector ought to have published the notification required by Section 5 at the latest on 13th of March, that is, fifteen clear days before the latest date of payment, namely, the 29th of March (the 28th being a Sunday). Admittedly no such notification was published; and, therefore, having regard to the prohibitive language of Section 5, we think that the Collector acted illegally in selling the property.
13. Then, as to this irregularity (supposing it to be a mere irregularity and not an illegality) being cured by the certificate granted to the auction-purchaser under Section 8, Bengal Act VII of 1868, we are of opinion that this section does not apply to a case in which no notification under Section 5 was published at all; and this point too was not pressed before us.
14. Paragraph 1 of Section 17 of Act XI of 1859 fas amended by Section 2, Bengal Act III of 1881] runs thus: 'No estate held under attachment by the revenue authorities otherwise than by order of a judicial authority shall be liable to sale for arrears accruing whilst it was so held under attachment.' Now, it is clearly established that there being arrears of road-cesa due in respect of Mehal Khurd Muradpore, the Collector took proceedings under Section 99 of the Cess Act (Bengal Act IX of 1880) by issuing a notification in the form in Schedule F annexed to the Act. That notification is in substance an order prohibiting ryots and other persons in possession of the mehal from paying rent to anybody else except to the Collector or the Cess Collector, until the further orders of the Collector; and it was published on the spot on the 12th of March 1886, and continued in force up to the 25th of September of the same year. But with reference to these proceedings, it is contended that this prohibitory order is not an attachment within the true meaning of the term; and that even if it be, then the attachment was not valid, because the Collector did not record his opinion as required' by Section 99 of the Cess Act. We think, however, that a prohibitory order of this kind is in effect a mode of attachment: and we also think that the evidence shows that both the Collector and the Deputy Collector who had been vested with the powers of a Collector under Section 99 (see letter of the Commissioner, dated November 14th, 1882, at p. 38 of the paper-book) substantially recorded their opinions that proceedings should be taken under that section. There was thus a valid attachment of this particular property for arrears of road-cess by the revenue authorities on the 12th of March 1886: and on the 13th March 1886 (1st Chyet 1292), as we have already observed, the revenue of the preceding month of Falgoon fell due, and became an arrear of revenue under Section 2 of Act XI; and, therefore, this arrear accrued while the property was so held under attachment. Consequently, the Collector was positively prohibited from selling the property.
15. (5 and 6.) The substantial question involved in the fifth and sixth objections taken by the learned Advocate-General is whether Section 33 of Act XI is applicable to the present case. We think that this question is not altogether free from difficulty. If Section 33 does apply, then it appears to us clear that the suit must fail, because the grounds now taken under Sections 5 and 17 of Act XI were not declared and specified, as Section 33 requires, in the appeal preferred to the Commissioner, the main ground taken in that appeal being one of hardship on the ground of lowness of price. Further, although it appears that the property, which was worth about fifty thousand rupees, was sold for the inadequate sum of rupees six thousand five hundred, thus, we think, causing substantial injury to the plaintiff's who had a charge on the surplus sale-proceeds, it is urged that there is no proof that this smallness of price flowed directly from the irregularities (if there be any), and therefore it cannot be said that the plaintiff's sustained substantial injury by reason of such irregularities. It is quite true that there is no evidence worthy of the name to show that the inadequacy of price was caused by the so-called irregularities. But then it is argued for the respondents that if Section 33 does apply, we are at liberty, in the absence of evidence, to infer that the irregularities deterred bidders and so were the cause of the property being sold at so low a price: and in support of this argument, Mr. Justice Ainslie's judgment in the case of Mohabeer Pershad Singh v. The Collector of Tirhoot 15 W.R. 137 is relied upon. We think, however, after giving all these arguments our best consideration, that we need not express any decided opinion on this latter point, because it seems to us that we are bound by the judgment of a Full Bench of this Court in a somewhat similar case, Lala Mobaruk Lal v. The Secretary of State for India in Council I.L.R. 11 Cal. 200; and that, in accordance with that judgment, we are compelled to hold that Section 33 of Act XI is not applicable to the present case, whatever be our own opinion on that point. In the case referred to the Full Bench the provisions of Section 6 of Act XI had not been complied with, because the date notified for the sale was less than thirty days from the affixing of the notice, and it was held that this was not a mere irregularity or one of those errors of procedure which are intended to he cured by the purchaser having obtained his certificate, but that the sale by the Collector was absolutely illegal and void, as not being a sale which the Collector had power to hold under the Act; and for these reasons it was also held that the sale was not a sale within the meaning of the term as used in Section 33 so as to render it necessary for the plaintiff to prove that he had sustained substantial injury. We think that the principle laid down by the Full Bench is applicable to the present case; and that if a sale is illegal and made without jurisdiction, because the date notifying the sale was less than thirty days from the affixing of the notice, and so contrary to the provisions of Section 6; a fortiori is a sale illegal and made without jurisdiction, when, as in the present case, such a sale is positively prohibited by the provisions of Sections 5 and 17 of the Act, And even if it be conceded that the omission to issue a notification under Section 5 was a mere irregularity (which we are not prepared to say it was), it is impossible to say that a sale made under circumstances positively prohibited by Section 17 is anything short of an absolute illegality. In this view and in accordance with the Full Bench ruling, we must hold that the sale in the present case was null and void.
16. The plaintiffs no doubt ask to have the sale annulled, using the words of Section 33: but in the view we take they might just as well have asked for a declaration that the sale was void and inoperative as against them. This, however, is a mere matter of form, and therefore not material to the present case. The result arrived at in either case would be the same. The appeal therefore fails on all points, and is accordingly dismissed with costs payable to the respondents who contested the appeal.
* Effects of annulment by decree of Court of sales under this Act.
[Section 34: If a sale made under this Act be annulled by a final decree of a Civil Court, application for the execution of such decree shall be made within six months after the date thereof; otherwise the party in whose favour such decree was passed shall lose all benefit therefrom. And no order for restoring such decree-holder to possession shall be passed until any amount of surplus purchase-money that may have been paid away by order of a Civil Court be repaid by him, with interest at the highest rate of current Government Securities. And if such party shall neglect to pay any amount so recoverable, within six months from the date of such final decree, he shall lose all benefit therefrom