Hugh Walmsley, J.
1. This appeal is preferred by the first defendant, the purchaser at an auction-sale held under the provisions of Act XI of 1859.
2. The estate sold was a residuary share bearing Touzi No. 2017 of the Chittagong Collectorate. The plaintiffs alleged that there were no arrears due from the estate and, granted that there were arrears, that the processes required by the Act were not duly served.
3. The First Court decreed the suit in February 1918 on the ground that there was no arrear of revenue on account of which the sale could be held. The purchaser then preferred an application for review of judgment, and this was allowed on April 1918. Both sides adduced additional evidence, and then the learned Subordinate Judge held that there were arrears for which the estate could be sold, but that there was collusion between the appellant and one of plaintiffs co-sharers, and consequently he directed the appellant to re-convey the property to the plaintiffs.
4. Then the defendant purchaser preferred an appeal and on his behalf it was urged before the Appellate Court that the order allowing a review of judgment was limited to the question whether as a fact there were arrears of revenue on account of which the estate could be sold. The learned Judge accepted this argument and confined his attention to that question. He then dealt with the evidence about the kists, and about the entries in the Touzi Department's ledgers and he agreed with the view taken in the second judgment of the first Court that the Pous kists unpaid, became 'arrears' within the meaning of Section 2 of the Act and that if such arrears remained unpaid on February 1925, the latest date for payment, as fixed under Section 3. there could be a valid sale; but he held that it was for the auction-purchaser to prove that there were arrears, and that he had produced no evidence to that effect. Consequently he dismissed the appeal.
5. It will be convenient to deal first with the main ground on which the purchaser attacks the Judge's decision. It is this, that the learned Judge was wrong in laying upon the purchaser the burden of proving that there were arrears of revenue, instead of requiring the plaintiffs to prove that there were no arrears. It is conceded for the respondents that the authorities quoted by the Judge do not bear out his view, but the learned Pleader for the respondents says that the view is correct. Among other things he said it was a matter within the special knowledge of the purchaser. That argument appears unsound: if anybody has special knowledge it must be the late owners. The question, however, does not turn upon special knowledge, but on the ordinary rule that a plaintiff must make out a case. If the plaintiffs want the Court to hold that the Collector had no authority to put the machinery of Act XI into force after 25th February they must make out a prima facie case to that effect, and they must do so by showing that actually there were no arrears unpaid on 25th February. If that were the only question it might be possible for us to treat the statements made in the plaint as admissions that arrears were left outstanding. Another aspect of the case, however, has been put before us. The result of the review has been that the other arguments advanced by the plaintiff have never been considered by the Appellate Court. Their case was that there had been fraud in the matter of service of processes, and fraud in the failure of their co-sharers, acting in connivance with the purchaser to deposit money given to them by the plaintiffs for deposit in the Collector's office. The learned Judge held that he could not deal with these questions, because the order granting review of judgment was confined to the question whether there were arrears and he took this view although the Judge of the First Court had again dealt with all questions.
6. This is very unsatisfactory. The plaintiffs appealed to the District Judge against the order granting review of judgment, but it was held that no appeal lay. It is said that they appealed to this Court but whether it was an appeal or an application under Section 115, C.P.C. they were unsuccessful. Does it follow that the plaintiffs are unable to put before the Appellate Court the argument that the First Court was; wrong in holding that notices were duly-served and that the defendant was not a party to any fraud? It appears to me that the plaintiffs are protected by Rule 7 of Order XLVII, and that whether the order granting review of judgment was limited in its scope or not, it remained open to the plaintiffs after the second judgment of the First Court to re-open in the Court of Appeal the questions of fraud and suppression of processes.
7. It is very desirable, now that the litigation has lasted so long, that all the matters in controversy should be threshed out.
8. The order that I think we should make is this: The judgment and decree of the lower Appellate Court are set aside, and the appeal will be re-heard: the purchaser will be the appellant as he has been throughout: the question whether there were arrears outstanding on 25th February will be dealt with on the footing that the burden of proof lies on the plaintiffs to prove that there were no arrears: the respondents will be entitled to support the decree passed in their favour by the First Court by showing that the processes were not properly served, or that on account of fraud or irregularity the sale cannot be allowed to stand.
9. The costs of this hearing will abide the result.
10. I agree.