JUDGMENTBY: BURTON, J

This is an appeal from a decree of Thomas, C. J., refusing a declaration that the sale of the plaintiffs lands which took place on 3rd November, 1932, at the instance of defendant as chargee was a nullity and vested no rights in the defendant. The sale was held under two orders, one of 2nd July, 1931, and one of 9th August, 1932. There seems to be no doubt that both these orders were bad and would have been set aside if an appeal had been lodged against them. But the plaintiff did not appeal, and he now brings this suit in which he seeks to set aside the sale consequent upon these orders because of the badness of these orders.

The defendant started proceedings for the sale of this land under the charge on 30th August, 1929, and the Collector made an order of sale on 28th February, 1930, fixing the sale for the 17th April and appointing separate reserve prices for the separate pieces of land. This order was never proceeded with, and on 2nd June, 1931, the Collector referred the matter to the State Council for permission to sell under the Small Holdings (Restriction of Sale) Enactment, 1931. He then made another order dated 2nd July, 1931, fixing a lump sum up-set price of $ 30,000/- and ordering the sale for 6th August, 1931. This order was drawn up in the form of Schedule XXXII and purports to be made under section 142 of the Land Code. No order from the State Council had been received, but the land was put up for sale on 6th August and no bids were received. There is no doubt I think that the order of 2nd July would be held to be bad. On 27th October, 1931, the State Council made an order permitting the sale, and on 13th February, 1932, the Collector again made an order in the form of Schedule XXXII fixing a date of sale and a lump sum reserve price of$ 100/-. This order was appealed against, and the sale did not take place. The order of the 15th February, 1932, was similar in all respects to the order of 2nd July, 1931. The Court of Appeal held this order bad; the judgment uses the following words:--

"Upon the matter coming before him, the learned Judge was of the

opinion that the order appealed against was a bad order, and in my

view, he should have so decided and declared the order a nullity."

The order was held bad because, as Thorne, J., said:--

"In my opinion having once acted under the provisions of that section,

the Collector becomes functus officio as to these two matters,

namely the amount due under the charge, and the consideration of the

question as to whether a sale be ordered or not. Any matter which may

thereafter arise under and in pursuance of the order for sale can only

be dealt with by the Collector under section 145 and the following

sections."

After this decision of the Court of Appeal the Collector made an order on 9th August, 1932, which though purporting to be made under section 145 again offends against the decision of the Court of Appeal. The sale was fixed for 3rd November, 1932, and the land was knocked down to the defendant at the reserve price of $ 100/-. The plaintiff now says this sale was bad because of the badness of the orders upon which it was based.

The sole question in this appeal is whether the plaintiff can now obtain a declaration setting the sale aside, or whether he is debarred from obtaining such a declaration because he has failed to appeal against the orders directing the sale. His right of appeal is governed by section 237 of the Land Code, which limits his right of appeal to thirty days from the time of the order. It has been argued that section 237 is an enabling section, but I am not clear what that argument means. It certainly enables a dissatisfied party to appeal, but I do not think that it can be read to mean that a dissatisfied party may adopt that procedure if he wishes but may equally well adopt some other procedure. In Taylor v Taylor (1875) 1 Ch D 426 at page 431 Jessel, M.R. says

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