The court clarified the application of Sec. 45, Sec. 46, and Sec. 42 in determining the effect of the sale on the plaintiff's interest and the entitlement to the relief of recovery of possession.

Meredith, J.

1. This is a defendants appeal under the Letters Patent from a decision of Das J. The suit was for a declaration that the right, title and interest of the plaintiff in Tauzi No. 4673, Jagir Lal Dubey Havildar, were not affected by the sale in certificate case no. 106 of 1938-39, and for an injunction restraining the defendant auction purchaser from interfering with the possession of the plaintiff of his share of the Tauzi, The facts were that there was default in the payment of cess of the March kist of 1938, and the certificate case in question was consequently issued, the certificate debtors being stated to be the plaintiff, two ladies, Mt. Siromani and Mt. Onkarmani, and two other persons, Mt. Kabutro and Jamuna Prasad Sahu. The shares sold were 1 anna 13 gandas and odd share of Mt. Kabutro, 1 anna 13 gandas and odd share of Jamuna Prasad Sahu, 5 annas and 6 gandas share of Mt. Siromani and Mt. Onkarmani, and 16 gandas and odd share of the plaintiff. In fact, however, by a partition prior to the certificate case Mt. Kabutro and Jamuna Prasad Sahu had ceased to have any interest, and the share of the plaintiff had become 10 annas and odd, while Mt. Siromani and Mt. Onkarmani held the remaining 5 annas and odd.

2. The trial Court and the Court of first appeal, while holding that the notice under Section 7, Public Demands Recovery Act had not been served on the plaintiff, held that the plaintiff had been dispossessed. The suit wag essentially one for setting aside the sale, and was barred under Sec. 45, Public Demands Recovery Act inasmuch as it had not been brought within one year from the date of delivery of possession. The appellate Court further held that the suit was barred under Sec. 42, Specific Relief Act, as the plaintiff had not asked for recovery of possession.

3. Before Das J. the plaintiff confined his case to the contention that the sale could not affect his interest beyond the 16 gandas and odd share of his which was actually sold. The sale, in so far as it was a sale of the right, title and interest of Mt. Kabutro and Jamuna Prasad Sahu, was no sale at all as they had no interest. The suit in this light was not for setting aside the sale, but for a declaration that it could not affect the interest of the plaintiff beyond 16 gandas and odd. The contentiona on behalf of the defendant before Das J. were that the suit was barred by limitation under Sec. 45, and that it wag also barred under Sec. 46, Public Demands Recovery Act (which corresponds to Section 47, Civil P. C.) as(?) no fraud had been alleged or established; and, thirdly, that the suit was bad under Sec. 42, Specific Relief Act. Das J. rejected these contentions and held that, though he had not expressly asked for it, the plaintiff could be given a decree for recovery of possession of his remaining share. Evidently he meant to apply the provisions of Order 7, Rule 7, Civil P. C. He gave the plaintiff a decree accordingly.

4. The same contentions have been pressed before us on behalf of the appellant, but in my opinion, the decision of Das J. was correct. It seems to me obvious that the decision whether Sec. 45 or Sec. 46 constituted a bar depended on the question whether there had been an actual sale and delivery of possession of the plaintiffs remaining interest. If there had not been, the suit was not for setting aside the sale, and Sec. 45 would have no application. Similarly, if there had been no sale of that interest and no delivery of possession of that interest, the plaintiffs grievance was not against the certificate-holder, and the question was not one between the certificate-holder and the certificate-debtor, for what the plaintiff complained of was in effect that without purchasing his interest or receiving delivery of possession of his interest the defendant as a mere trespasser had taken possession of that interest under colour of his auction purchase and delivery of possession.

5. It is, therefore, necessary to conside