JAGANNATHA PILLAI Vs. KATHAPERUMAL PILLAI

JUDGEMENT

(1.) The plaintiffs suit is for cancellation of a revenue sale of the plaint items on the ground that there was fraud and material irregularity in publishing and conducting it. Both the Lower Courts have found on the merits in plaintiffs favour and set aside the sale. The legal representatives of the 1 defendant, the landholder, have preferred this Second Appeal.

(2.) The vakil for the appellants raises the contention that no suit lies to set aside a sale in execution of a rent decree on the ground of fraud or material irregularity in publishing and conducting the sale as a suit is barred under Order 21, Rule 92, Civil Procedure Code. This point was not raised in the Lower Courts. But we allowed it to be raised as it affected the maintainability of the suit. The argument is that the provisions of the Civil Procedure Code of 1882 with a few exceptions are made applicable to the proceedings under the Estates Land Act and therefore a suit to set aside a sale is barred under Section 312 of the old Code corresponding to Order 21, Rule 92 of the present Code, and a sale can only be set aside under Section 311 corresponding to Order 21, Rule 90 of the present Code.

(3.) Section 192 of the Estates Land Act provides that, with a few exceptions, the provisions of the Civil Procedure Code shall apply to all suits and other proceedings Under the Act so far as they are not inconsistent therewith. The question is, is a suit in a Civil Court for setting aside a revenue sale held in execution of a rent decree barred either by reason of Section 312 or by reason of the provisions contained in the Estates Land Act? By S.189 of the Act only certain classes of suits which are mentioned specifically in Schedules A and B are exempted from the cognizance of the Civil Court. The present suit is not one of those specifically mentioned in Parts A and B of the schedule. When the Act specifically says that the right of action in a Civil Court is not taken away except in the cases specifically mentioned in the Act it would be opposed to the principles of construction of a special Act to hold that it takes away the right of a party to seek redress in a Civil Court in other cases. The right of a person to seek relief in a Civil Court is a common law right and as long as he can show cause of action he can bring a suit for redress. In this case on the allegations made by the plaintiffs, they have a cause of action and unless the suit is expressly barred by some provision of the Estates Land Act they would be entitled to seek relief in the ordinary Civil Courts of the land.