The main legal principle established in the judgment is that under Act II of 1864, lands sold for arrears of revenue are considered to be the property of the defaulter, even if encumbered, and are to be sold free of all encumbrances.

Miller, J.

1. I think it is beyond doubt that what was sold in this case was land of the defaulter within the meaning of Act II of 1864, and the question is why should not the provisions of Section 42 be applied to the sale.

2. The learned vakil for the first respondent with the aid of an ingenious piecing together of dicta to be found in Secretary of State for India v. Narayanan I.L.R. (1885) Mad. 130, Narayana Raja v. Ramachandra Raja I.L.R. (1903) Mad 521 and Ramachandra v. Pilchikanni I.L.R. (1884) Mad. 434, presents for our acceptance the conclusion that the sale is not free of encumbrances because the land sold is not by Section 2 made security for the public revenue for which it was sold. His construction of Section 2 is not established by any of the cases, and I am not prepared to decide that it is correct, but assuming its correctness I cannot sea how the plain words of Section 42 are to be limited by reference to Section 2. A sale may be free of encumbrances whether or not it is held to enforce, a first charge the liens being all transferred to the proceeds. In Ramachandra v. Pitchikanni I.L.R. (1884) Mad. 434 the learned judges no doubt observe that the intention is clear that the purchase is free of prior encumbrances only when the arrear is of public revenue of which, the land is the first security by statutory declaration, but there is nothing to suggest that they construed Section 2 in the way we are asked to construe it: they were not dealing with that question, and their dictum was intended to support their view that a sale for an arrear of revenue due under a different statute is not by virtue of Section 42 of Act II of 1864 free of encumbrances. I venture to think that if they are right as to the intention of the legislature we must construe Section 2 as declaring all the land of a landholder to be security for all the land revenue payable by him, for the intention as expressed in auction 42 is to my mind very plain; every sale of land conducted Under the Act is to be free of encumbrances. The sale in question is a sale of land under the Act and would therefore allow the appeal and dismiss the suit with costs of the first defendant throughout.

Munro, J.

3. The third defendant held lands in Kalidindi under one patta, and lands in Sana Rudravaram under another patta. All these lands were mortgaged to the plaintiff. Arrears of revenue having, subsequent to the mortgage, accrued on the lands in Kalidindi, those lands were attached and sold at auction by the Revenue authorities, and, as the proceeds did not cover the whole of the arrears due, the lands in Sana Rudravaram were attached and sold for the balance and were purchased by the second defendant. The plaintiff then brought the suit, out of which this second appeal arises, to have the revenue sale of the Sana Rudravaram lands set aside, and also for a declaration that the lands remained subject to his mortgage. The District Munsif refused to set aside the sale but gave a declaration that the sale was subject to the plaintiffs mortgage. This decree was confirmed by the Subordinate Judge on appeal. The present second appeal is by the Secretary of State for India in Council, and questions the propriety of the above declaration.

4. The villages of Kalidindi and Sana Rudravaram are in the same district. Act I of 1890 has therefore no application, and the point at issue must be decided solely in accordance with the provisions of Madras Act II of 1864. Under Section 5 of that Act an arrear of revenue may be recovered by the sale of the defaulters moveable and Immovable property and also by execution against the defaulters person. There is nothing in the section to restrict the land that may be sold thereunder to the land on which the arrear of revenue has accrued. It is clear therefore that for the arrear which accrued on the third defendants land in Kalidindi, the lands included in his Sana Rudravaram patta were liable to be sold if in the eye of the law they w