GANGADHAR DAS Vs. BHIKARI CHARAN DAS

JUDGEMENT

(1.) This was a suit to set aside a revenue sale. The sale took place on the 9th April 1906, and the date on which the proclamation is said to have been affixed in the Collectorate was recorded as the 6th April. The Munsif considered, that this was a clerical mistake; but the lower Appellate Court took a different view, and found that the defendant had failed to prove that the notice was affixed in the Collectorate one month before the date of the sale. He held that this was an irregularity, and he also held that the price realised at the sale was inadequate. Bat he was unable to find that there was any evidence to connect the inadequacy of the price with the irregularity and accordingly dismissed the suit.

(2.) The plaintiff appeals to this Court.

(3.) The first point taken on behalf of the plaintiff is, that the omission to post the proclamation of sale in the Collectorate one month before the date of sale (a point on which we are concluded by the decision of the lower Appellate Court) amounts to more than an irregularity, and makes the whole sale entirely null and void whether th6 plaintiff was injured or not. This is an argument that has very frequently been used in dealing with these revenue sales, and finds expression in the Fall Bench decision in the case of Lala Mobarak Lal v. Secretary of State 11 C. 200. In that case the learned Judges held, that failure to comply with the provisions of Section 6 of Act XI of 1859 amounted to more than an irregularity and to an entire illegality, and that, consequently, the provisions of the Act imposing restrictions upon the rights of persons whose property was sold to relief in the Civil Courts, had no application; inasmuch as in such a case there was really no sale at all. The learned Chief Justice thought that in that case the sale in question could not properly be said to be a sale for arrears of revenue within the meaning of the Act; and Mitter, J., held that it was null and void as not being a sale under the provisions of Act XI of 1859. They held, therefore, that the sale in such a case was not a sale at all under the Act, and that the provisions of the Act which imposed restrictions on the right of the defaulter to have the sale set aside, had no application.