Judgement

Appeal from a judgment and decree of the High Court (July 4 1910) reversing a judgment and decree of the Subordinate Judge of Midnapore (March 29, 1909).

The question for determination in the appeal was whether the High Court had rightly decided that the first respondent Hari Dasi Debi was entitled to a decree setting aside a sale, under Act XI. of 1859, of a half share in a zamindari.

The facts were as follows. The first respondent Hari Dasi Debi was the proprietor of a half share of mahal Gumukpota in respect of which a separate account had been opened in the Collectorate

register. There was an arrear in the payment of the kist due on January 19, 1907. Notifications dated February 16, 1907, were issued and published under ss. 6 and 13 of Act XL of 1859 fixing March 26, 1907, as the date of sale of her share in the zamindari " for arrears of revenue and other demands which by law are realizable as arrears of revenue." The arrears due were stated to be " Rs. 547 including Police."

On March 13, 1907, a certificate was filed under s. 7 and s. 9, sub-s. 3, of Bengal Act I. of 1895 (the Public Demands Recovery Act), as amended by Bengal Act I. of 1897, for Rs.69 for embankment charges (pulbandi) due under the Bengal Embankment Act (Bengal Act II. of 1882) in respect of the lands in question.

On March 25, 1907, the first respondent applied by petition to the Collector praying for exemption from sale of her share in the zamindari upon payment of the revenue in arrear. Upon this petition the Collector, on that day, ordered as follows " May be accepted, if paid to-day." Upon inquiry from the clerk of the arrears collection department her agent was informed that the amount due was Rs.807, and this sum was accordingly deposited by her on March 25 and receipts given. The Rs.807, however, did not include the Rs.69 due for pulbandi under the certificate of March 13, 1907.

On March 26, 1907, the non-payment of the Rs.69 was reported to the Collector, who ordered as follows " Rs.69 remains to be paid ; put up for sale." No notifications of the sale were issued under s. 5 of Bengal Act XI. of 1859. Accordingly on that day the half share in the zamindari was put up for sale and was knocked down at the nominal price of Rs.500, it being valued at Rs.50,000. The purchaser, Nandalal Mullick, sold to the first appellant Dhiraj Chandra Bose. The first respondent took proceedings to set aside the sale, but, on May 24, 1907, the Collector confirmed it and ordered the issue of a certificate of title. This order was confirmed by the Commissioner on July 26, 1907, and a sale certificate was subsequently issued.

The first respondent, in January, 1908, instituted the present suit against the purchaser, Nandalal Mullick, and the appellant Dhiraj Chandra Bose, to whom he had sold, claiming to have the sale set aside. By her plaint she claimed, inter alia, that the sale was illegal as the Collector did not act in accordance with the provisions of s. 5 of Bengal Act XL of 1859, and upon the ground that she had been misinformed by the clerk at the Collectorate office as to the amount due.

The Subordinate Judge dismissed the suit. He held, inter alia, that there had been no order for exemption, since the condition upon which it would have been granted had not been fulfilled; that the sale took place for the arrears of land revenue and was valid and final, and that consequently no notifications under s. 5 of Act XL of 1859 were necessary; and that the plaintiffs agent had not been misled as to the amount due, but that, if he had, the Court had no power to relieve the plaintiff upon that ground.

The High Court (Holmwood and Sharfuddin JJ.), by its judgment delivered on July 4, 1910, allowed the appeal. The judgment of the learned judges, after setting out the facts above stated and finding that there was evidence that the existence of the arrear of Rs.69 might have been purposely withheld from the plaintiff, proceeded in the following terms —

" We fully