1. This second appeal arises out of a judgment and decree of the learned District Judge of Gaya, decreeing the appeal, in his Court and dismissing the suit of the plaintiff with costs in both Courts but without costs against the Collector.
2. The facts of the case are briefly as follows: A mokarari tenure was sold for arrears of rent and purchased ostensibly in the name of the appellant before us. He applied to the Collector to issue notice to some under-tenure-holders that the incumbrances were annulled. The Collector, being apparently misled by the statement which also appears in the plaint that the property is 8-annas share in a village belonging to the Maharaj Kumar Gopal Saran Narain Singh of Tikari decided that the plaintiff had no power to annul the incumbrances and refused to issue the notice. The plaintiff thereupon brought two suits in the Court of the Subordinate Judge for declaration that he was the purchaser in execution of a decree for arrears of rent of the mokarari tenure and that he had power to annul the incumbrances claimed by the defendants by service of notice under Section 167 of the Bengal Tenancy Act and that the Collector was bound to issue and cause such notice to be served. Neither of the lower Courts could apply Section 45 of the Specific Relief Act to this case, as that only applies to this Court. To that we shall advert presently. The learned Subordinate Judge in the first Court held that the plaintiff had power to annul the under-tenures claimed by the defendants, notwithstanding the fact that he was proved to be the benamidar for the judgment-debtor, one Jawad Hossain. The Court of Appeal below has reversed this finding, although it holds that the Collector was bound to issue notice under Section 167 on the requisition of the person in whose name the sale-certificate stands and has, therefore, given no costs to the Collector, who does not appear in the appeal before us. But he holds that inasmuch as the plaintiff was not the real purchaser he cannot annul the incumbrances.
3. The question, as stated by the learned Judge in the Court below, would possibly be not altogether free from difficulty. But whatever view of the case be taken, it is clear that this is not a case where the Courts should be asked to give equitable relief by directing a public servant to exercise his powers under Section 167 of the Bengal Tenancy Act. Section 173 of the Bengal Tenancy Act is mandatory and lays down that the judgment-debtor shall not bid for or purchase the tenure or holding so sold, and it has been held that if he does so, he is liable to punishment under Section 185 of the Indian Penal Code.
4. It is true that Sub-clause (3) of that section largely does away with the salutary effect of the prohibition and establishes a sort of rule of factum valet and throws upon the decree-holder or any other person interested in the sale the burden of making an application to have the judgment-debtor's actual purchase set aside. But the Court has full discretionary power to set it aside if such an application is made. Then, again, it was held by a Bench of this Court in the case of Prosunno Coomar Roy Chowdhry v. Gooroo Churn Sein 3 W.R. 159 that the real owner of the property is the person who should institute the suit. 'The benami-holder may sue as trustee on behalf of the beneficial owner without disclosing the name of the real owner; and if the defendant does not object to the suit proceeding in that form and raises no issue upon the real title of the plaintiff, the suit may proceed and be decided. ' But here the reverse was the case. The defendants at once raised the issue that the plaintiff was not the beneficial owner of the property and that Jawad Hossain was; and it is in vain to say that he is only one of numerous judgment-debtors. The law as laid down in Section 173 does not distinguish between one judgment-debtor and another. The prohibition is against all the judgment-debtors which includes one of them, and proviso to Sub-clause (3) is in favour of one judgment-debtor who happens to have purchased.
5. Accepting then the position that the Collector under the somewhat anomalous state of the law will issue notice on the requisition of the person in whose name the sale-certificate stands, we have still to consider whether it would in equity be right for a Court to require him to do the specific act which he is asked to do here. The provisos to Section 45(a) and (c) clearly show that this Court would never call upon the Collector in a case of this kind to exercise, his authority in any manner whatever. The proviso (a) says that the application for this order should be made by some person whose property or franchise or personal right would be injured by the forbearing or doing of the said specific act. Now it is clear that the only person whose property and right would be injured is the judgment-debtor, the beneficial purchaser, and, therefore, the benamidar plaintiff would have no right to make an application, under Section 45, Specific Relief Act. Proviso (c) says, provided that in the opinion of the High Court such doing or forbearing is consonant to right and justice. Anything less consonant to right and justice than to allow this plaintiff to fly in the face of the law and by putting forward technicalities to try and purchase valuable property for the judgment-debtor and thereby inflict a double wrong on the decree holder and on the under-tenure-holders we cannot conceive. We certainly should not consent to any such order being passed in favour of the plaintiff in this case.
6. The result is that the appeal is dismissed with costs throughout. The Collector not being present we are unable to deal with the costs in his case, but we desire to state that we think the learned Judge was wrong in refusing the Collector his costs.