Judgement

Appeal from a decree of the High Court (Sept. 2, 1889), affirming a decree of the Subordinate Judge of zillah Rungpore. (Feb. 6, 1888).

The suit was brought by the executors of the will of Bhajirat Doss (the son and legal representative of Bhulam Dons, the mortgagee hereinafter mentioned), to set aside a sale of mouzah Khurd Muradpore for arrears of revenue under which the mouzah was purchased by the Appellant, who was the first Defendant to the suit, and to declare the mouzah liable to sale in satisfaction of the mortgage. Both Courts below held the sale to be invalid. The facts were not disputed, and are stated in the judgment of their Lordships. The questions raised were of law involving the construction and effect of certain sections of the Revenue Sale Act (XI of 1859).

The Plaintiffs contended that the Collector had no jurisdiction to make the sale. Their grounds were—(1.) that before and at the time of sale the mouzah was under attachment by the revenue authorities pursuant to the provisions of the Cess Act, 1880, Bengal Council, sect. 99, and that, therefore, under Act XI. of 1859, sect. 17, the Collector had no jurisdiction to sell it; (2.) that the mouzah had been attached on the 25th of September, 1885, by an order of a Civil Court in execution of a decree obtained by a creditor of the then proprietor, the Defendant, Ramjanam Misser, and that in such case the notification of sale for arrears of revenue should, under Act XI. of 1859, s. 5, have been affixed at the various places mentioned in that section for not less than fifteen clear days preceding the date fixed for payment of the arrear of Government revenue, i.e., the 28th of March, 1886, and that no such notifications were in fact made until the month of May.

The Appellants contentions on those points were that the attachment for road cess did not bring the case within sect. 17 of Act XI. of 1859 ; that, as the attachment by the Civil Court had come to an end on the 18th of May 1886, that is to say, previous to the sale for revenue on the 26th of June, 1886, the 5th section of that Act did not apply ; and that all defects (if any) in the Collectors procedure were cured by sect. 33 of Act XI of 1859, by reason of their not having been objected to by the Respondents in their appeal against the sale to the Commissioner, and by virtue of a grant of a certificate of title to the Appellant and the effect given thereto by sect. 8 of Act VII. of 1868 B.C., in curing irregularities in the service of the notices required by the two above-mentioned Acts.

The Subordinate Judge ruled that the Plaintiffs, as mortgagees, were competent to sue under sect. 33 of Act XI. of 1859. And he held that the revenue sale was invalid under sect. 5, inasmuch as fifteen days notice had not been given prior to the 28th of March, 1886, and the estate was at that time under attachment by order of a judicial authority. lie also held that under sect. 17, clause 2, of Act XI., the Collector had no power to sell, because the mouzah was at the time of sale under attachment by the revenue authorities for arrears of road" cess.

He found, moreover, that the sale was for an inadequate price, and that the Collectors irregularities were the main cause of such inadequacy within the meaning- of sect. 33.

Accordingly he decreed that the sale was contrary to law and should be set aside; that the Appellant should receive back his purchase-money with interest; that the rights of the Plaintiffs as mortgagees should be declared to be subsisting; and that the amount of their decree should be realized by sale of the mouzah.

The High Court in appeal agreed with the Subordinate Judge that a mortgagee could sue under sect. 33 of Act XI. of 1859. They also held that the Collector acted illegally in selling pro perty which was under civil attachment without a notification under sect. 5, and that it was not necessary that the attachment should continue at the time of sale. They agreed that the proceedings und