(1.) The facts giving rise to this appeal may be shortly stated as follows : There is a revenue paying estate bearing touzi No. 395 of the Alipore Collectorate which is owned jointly by several cosharers. A number of separate accounts were opened in respect of the shares under the provisions of the Revenue Sale Laws, and we are concerned only with one of these separate accounts which is S.A. 395/3. The owners of this separate account having made default in the payment of revenue, due in respect of the same, this share was put up to sale under Section 13, Act 11 of 1859 on 23 September 1935. No bids were received on that date, and the Collector in exercise of his powers under Section 14 of the Act stopped the sale, and made a declaration that the entire estate would be sold, unless the other recorded sharer or sharers of the touzi would purchase the separate account, by paying the entire arrears due in respect of the same, within ten days from that date. Several cosharers now came forward, and each one of them deposited the entire arrears due in respect of the separate account, which amounted to Rs. 482.
(2.) The plaintiff paid the money on 25 September 1935. Another cosharer named Butto Kristo, who is defendant 3 paid the said sum on the day following, and lastly on 14 October 1935, Hemendra and Gouribala, who are defendants 1 and 2, each deposited in the Oollectorate the sum of Rs. 482 by separate chalans. It may be stated here that the puja holidays set in before the expiry of the ten days, within which the arrears were to be paid, and the office re-opened on 14 October 1935, on which day the payments were made by defendant 1 and 2. The Collector by his order dated 17 October 1935, declared all the four persons to be purchasers of separate account 395/3 in equal shares, and the certificate of purchase was issued accordingly. The balance of the deposits made by all these four persons was directed to be refunded. The matter was then taken before the Commissioner, who affirmed the order of the Collector. The plaintiff whose deposit was earliest in point of time now commenced this suit, and he prayed for a declaration that he was the full 16 annas purchaser of the separate account under Section 14 of the Revenue Sale Law, and that the defendants could not be given any shares in respect of the same. There was also a prayer for a permanent injunction restraining the defendants from taking possession of the property in accordance with the order of the Collector. Gouribala, defendant 2, was alleged to have transferred her interest to one Devendra who was made defendant 4 in this suit. The suit was resisted by defendants 1 and 4. Their contentions were mainly of a twofold character. The first contention was that the order of the Collector was right and the plaintiff by making the deposit earlier could not obtain any preferential title. It was said that all the recorded sharers, who deposited the money within 10 days from the date of the declaration, would be entitled to rank as purchasers under Section 14 of Act 11 of 1859. The second contention was that the plaintiff's suit was barred under Section 33 of the Revenue Sale Law.
(3.) The trial Court was of opinion that the payments made by Hemendra and Gouribala, were ineffectual, inasmuch as they were made after the period of ten days had expired, and it held that the intervening of the puja vacation could not give them an extension of time on the analogy of Section 4, Limitation Act. The only payments that were made within time were those of the plaintiff and Butto Kristo, and as between them, the plaintiff's deposit was earlier, he was entitled to be declared the purchaser of the entire separate account. In this view of the case the Munsif decreed the plaintiff's suit. There was an appeal takes against this decision, by defendants 1 and 4 to the Court of Appeal below, and the Additional Subordinate Judge who heard the appeal reversed the judgment of the this Court and dismissed the plaintiff's suit. The Subordinate Judge concurred in the view taken by the Munsif that as soon as the plaintiff made his payment, the purchase was complete and as there was nothing left for anyone else to buy the Collector was bound to recognize the plaintiff as the sole purchaser of the separate account. But he held nevertheless that the plaintiff could not succeed in the suit, which was one under Section 33 of the Revenue Sale Law as he had not fulfilled the conditions of that Section. What the Subordinate Judge said is this : that in order that a Civil Court might annul a sale under Section 33, Revenue Sale Law, it was necessary to establish that the plaintiff had sustained substantial injury by reason of the irregularity complained of, and the question of injury must have been taken specifically before the Commissioner in an appeal. As no such point was raised before the Commissioner, the suit was not maintainable under Section 33, Revenue Sale Law.