1. This is an appeal against an order of the lower Court setting aside a sale held for arrears of Government Revenue. It appears from the judgment of the lower Court that a taluq called Pachitira bearing No. 160 on the Collectorate Roll of Balasore was sold for arrears of Government Revenue for the November kist of 1904, amounting to Rs. 24. The property was sold on the 6th February 1905 for Rs. 1,000 and purchased by the appellants and the sale was confirmed on the 1st August of the same year. There was an appeal to the Commissioner by the respondents, the original proprietors, which was rejected on the 3rd July 1905. The present suit was instituted on the 3rd July 1906, under Section 33 of Act XI of 1859.
2. The grounds which were put forward for setting aside the sale were two. First, that in the 6th column of the sale proclamation under Section 6 of Act XI of 1859, the name of the proprietor was wrongly stated. The name given was Bhajan Raut of Jesatikri. It seems that there is on the Collectorate Roll of the Cuttack District a mahal bearing Towzi No. 160 and that the proprietor of that mahal is Bhajan Raut. Rent for this mahal is paid into the Balasore Collectorate.
3. The case for the plaintiffs was that, owing to that misstatement in the sale notification, intending bidders were misled, that there was doubt as to the estate which was actually being sold and that, in consequence, the mahal, the proper value of which was Rs. 6,000, was sold for Rs. 1,000 only.
4. The second point taken was that the notice required by section 7 of Act XI of 1859 was served not in mahal Pachitira which is estate No. 160 on the Balasore Collectorate but in mahal Bhagra which is estate No. 160 on the Collectorate Roll of the Cuttack District and of which the proprietor is Bhajan Raut. It was contended that this constituted as serious irregularity and that these two irregularities having resulted in a substantial loss to the proprietors of the mahal, the sale should be set aside. The lower Court has come to the conclusion that these mistakes in the proceedings leading up to the sale constituted irregularities. It has also come to the conclusion that the property was sold for a very inadequate price, that the proprietors suffered substantial loss and that the loss was consequent on the irregularities.
5. It has been contended before us that, under the rulings of this Court, the view taken by the lower Court cannot be supported. It has been argued, on the authority of the case of Deonandan Singh v. Manbodh Singh 32 C. 111, that it must be held that the mis-statement of the name of the proprietor in the sale notification did not constitute an irregularity because the provisions of Section 6 of Act XI of 1859 do not require that the name of the proprietor should be entered in the sale notification. It has also been contended that the service of the notice under Section 7 of Act XI of 1859 in the wrong village cannot be regarded as an irregularity which coupled with substantial loss, would have the effect of vitiating the sale because under the provisions of Section 8 of Act VII (B.C.) of 1868 the sale-certificate itself must be taken to be conclusive evidence in favour of the purchaser that the notices had been duly served and posted. In our opinion, the facts of the present case are peculiar and the rulings, on which the learned pleader for the appellants has relied, cannot be taken to afford sufficient authority for holding that the view taken by the lower Court is incorrect. In the present case, we have it as a fact that there are two estates bearing the same number, one on the Cuttack Collectorate Roll and the other on the Balasore Collectorate Roll, that the estate which has been sold belonging to Ganesh Prosad and others was numbered 160 of the Balasore Collectorate and the estate bearing No. 160 on the Colleotorate Roll of Cuttack is the property of Bhajan Raut. The description given in the 6fch column of the sale notification was certainly one which was calculated to create confusion and in itself would appear to indicate that the Collectorate authorities were of opinion that the estate which was about to be sold was estate No. 160 on the Cuttack Collectorate. Evidence has been given to prove that in this case persons came to the sale intending to buy the estate on the Cuttack Collectorate which, they thought, was about to be sold but that, when they arrived, they found that there was some confusion as the taluq was described as Pachitira and not Bhagra and, therefore, they went away without making any bids. One of the witnesses says that if the name of the owner of Pachitira had been entered in the sale-notification he might have bidat the sale. The lower Court has come to the conclusion that the mis-statement in the sale-notification had the effect of misleading intending bidders and that, therefore, it was an irregularity. The case on which the learned pleader for the appellants has relied in support of the present appeal does not go so far as to say that, when there has been a mis-statement which has misled intending bidders, it would not constitute an irregularity but what was decided in that case was that the statement of the name of a deceased proprietor was not an illegality which would render the sale void because, under the terms of the Act, it was not necessary to enter the name of the proprietor at all. The mere fact that the law does not require the name of the proprietor to be entered is very different from what has been alleged to have occurred in the present case, namely, that the name of a wrong proprietor was entered and that, in consequence of that mis-statement, intending bidders were misled. In our opinion, such an incorrect entry resulting in misleading intending bidders must be held to be an irregularity such as is contemplated by Section 33 of Act XI of 1859. It has been suggested that this irregularity is not contrary to the provisions of the Act. In our opinion, it is such a departure from the provisions of the Act as to constitute an act contrary to provisions of the law. The object of the provisions of the Act is to give to the intending purchasers correct information as to the/property to be sold and when, as in this case, wrong information has been given and intending bidders have been misled or involved in doubt as to the property to be sold that is an act contrary to the intention of the Act. We are, therefore, of opinion that, in the present case, the lower Court was perfectly right in holding that the mis-statement contained in the sale-notification constituted a substantial irregularity.
6. So far as the second point is concerned, we are of opinion that, though the provisions of Section 8 of Act VII (B.C.) of 1868 would prevent the plaintiff from proving that there was any irregularity in the service or posting of the notice required by the provisions of Section 11 of the Act, still it would not prevent them from proving, as in the present case that a notice in contravention of the provisions of that Act had been served in a wrong mahal which in itself and by its service supported the conclusion that the mis-statement in the sale-notification constituted a serious irregularity because it led to mistakes in the service of the notice with the result of deterring intending purchasers from bidding at the sale.
7. We think, therefore, that the judgment and decree of the lower Court are not open to objection. We accordingly confirm them and dismiss the appeal with costs.