The interpretation of the Collector's power under Section 38(3) of the Revenue Recovery Act and the limited role of the Civil Court in setting aside a sale.

Horwill, J.

1. On the 31st December, 1932, the share of the third defendant in a house and garden was brought to sale by the Revenue authorities because of his failure to pay Income Tax. The third defendants share is said to be worth Rs. 17,000. It was actually sold for Rs. 800. On 23rd February, 1933, the Sub-Collector, in the absence of any application to set aside the sale, confirmed it. The second defendant, a creditor of the third defendant, had attached the same property in execution of a money decree on the 31st March, 1933 and on the same date he filed an application before the Collector under Regulation VII of 1828. The Collector, exercising his powers of revision set aside the order of the Sub-Collector of the 23rd February, 1933, confirming the sale. The Collector was of opinion that two material irregularities had been committed (1) an incomplete description of the third defendants interest in the house and garden and (2) that the property had been sold in one lot instead of the garden and the portion of the house being sold separately. He also found that the property had fetched a very low price; but he did not say that the low price was a result of these material irregularities. The present appellant thereupon filed this suit on the 2nd April, 1934, under Section 59 of the Revenue Recovery Act to have the Collectors order set aside and the sale confirmed. Both the trial Court and the lower appellate Court found that there was a material irregularity in the description of the third defendants share of the garden and drew the conclusion, which they considered to be reasonable under the circumstances, that the low price was the direct result of the material irregularity.

2. It is here argued that there is no evidence that the low price resulted from the material irregularity and Section 38 (1) of the Revenue Recovery Act has been referred to show that it is necessary before setting aside a sale that the Collector should be satisfied that a substantial injury resulted from the irregularity and that the lower Courts were not justified in coming to the conclusion which they did in the absence of direct evidence. Macnaghten v. Mahabir Pershad Singh, decisions of the Privy Council have been referred to as indicating that some direct evidence is necessary. In these cases, especially in the former, there was no particular reason why the Court should have concluded that the irregularity was likely to lead to any substantial loss; but Tasadduk Rasul Khan v. Ahmad Husain, contains a passage at page 70 which supports the argument of the learned advocate for the appellant. It runs as follows:

Their Lordships cannot accept the judgment of the Judicial Commissioner that loss is to be inferred from the mere fact that a sale was had without full compliance with the provisions of Section 290. The section clearly contemplates direct evidence on the subject,

the words direct evidence apparently being used in contradistinction to circumstantial evidence.

3. I do not however consider it necessary to decide whether the wording of Section 38 (1) prohibits the deduction of an inference, in the absence of direct evidence, that a low price was a direct result of the irregularity; for the order passed by the Collector was not one under Section 38 (1) of the Revenue Recovery Act. Under Regulation VII of 1828 the Collector has power to delegate his authority in certain matters; and the Sub-Collector in bringing this property to sale under the Act, was exercising such a delegated authority. That Regulation empowers the Collector to control the acts of the Sub-Collector in exercise of that delegated authority by revising the orders of the Sub-Collector. When the Collector acted on the petition of the second defendant, he was revising the order of the Sub-Collector confirming the sale. So that the position after the Collector had exercised his revisional power was that the sale had not been confirmed. If therefore the Collector was to set aside