P L D 1967 Dacca 299 (PLP)

MURSHED, C. J. This appeal raises important points of law as well as of fact. After a full argument addressed to us from the Bar, we have decided to send the case back on remand to the Appellate Court below for a full and complete hearing of the appeal and for proper adjudication of the issues that have been raised by the pleadings of the respective parties. Plaintiff (appellant before us) is the auction‑purchaser at a certificate‑sale under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) (hereinafter called the Act). The sale was confirmed and the plaintiff received delivery of possession of the properties. Thereafter the principal defendants 1‑5 in‑ the suit filed by the plaintiff challenged the sale under section 23 (2) of the Act before the Certificate Officer who directed the sale. The application was marked as Miscellaneous Case No. 9 of 1955‑56 and it was dismissed for default of appearance on the 15th of November 1955, which was the date fixed for hearing of the said case. The said defendants (respon dents before us) then filed an application for review of the aforesaid order. The review application was also dismissed on the 8th of December 1955. Against the order of dismissal the defendants filed a petition before the Additional Collector on the 23rd of December 1955, by way of appeal and the case was marked as Certificate Appeal No. 39 of 1955‑

56. The Additional Collector allowed the appeal and set aside the sale so far as the interest of the said principal defendants 1‑5 was concerned whereupon the plaintiff filed a revision application under section 53 of the Act before the Commissioner who by his order dated 17th of November 1956, allowed the application and confirmed the sale. The principal defendants then moved the Member, Board of Revenue, in his revisional jurisdiction, and the case was numbered as Case No. 28 of 1957. The Board of Revenue set aside the order passed by the Commissioner and restored that of the Additional Collector. This means that the aforesaid sale stood set aside by the order passed by the Member, Board of Revenue, to the extent of the interests of the said principal defendants in the properties sold. Being aggrieved by the aforesaid order passed by the Member, Board of Revenue, the auction-purchaser at the certifi cate sale instituted a suit in the Court of a Munsif at Dacca for a declaration that the order passed by the Member, Board of Revenue, was without lawful authority and of no legal effect and, furthermore, that the plaintiff had title to the aforesaid properties which were the subject‑matter of the suit. Plaintiff further asked for confirmation of his possession in the suit‑proper ties. The suit was contested by defendants 1 to 6 of whom defendants 1 to 5 filed one set of written statement and‑ defen dant No. 6 filed another written statement. They are the res pondents before us. It is unnecessary to set out the details of the pleadings of the parties in view of the orders that we propose to make in this case. We may, however, note that it was contended by the defendants, inter alia, that the suit was not maintainable inasmuch as under the Act the points agitated by the plaintiff' should have been agitated before the appropriate authority under that Act. It was; therefore, urged that the suit was barred under the provisions of section 37 of the Act. It was next contended that the suit‑properties were sold for a nominal sum and that the same would be worth at least twenty‑five thousand rupees whereas the purchaser had purchased the same for a sum of three thousand five hundred and forty rupees only. Furthermore, it was averred by the defendants that the sale did not take place on the date when it was proclaimed and advertised to be sold, that is to say, that according to the proclamation the sale should have taken place on the 6th of November 1955, but that the properties were fraudulently sold on the 11th of June 1955. It was again contended that the order passed by the Additional Collector and those made by the Member Board of Revenue were within the competency of the said revenue authority. On the pleadings a mumber of issues were framed and the learned Munsif, who tried the suit, decreed the same, Consequently, the aforesaid defendants preferred an appeal which was heard and disposed of by an Additional District Judge of Dacca, the appeal being marked as Title Appeal No. 22 of 1960. The learned Additional District Judge allowed the appeal and dismissed the suit. Hence this appeal. At the bearing of this appeal we were taken through the judgments pronounced by the Courts below and have heard full arguments which were addressed to us by the learned Advocates appearing for the parties. We would like to mention at the very outset that we have come to a finding that the suit is maintainable and we agree with the conclusion arrived at by the trial Court on this point. It would be seen that the suit is directed against the decision of the Member, Board of Revenue, and there is no other machinery by which the decision of the said revenue authority can be impeached when it has become final. If the allegation of the plaintiff, if true, is sufficient to establish that the order was de hors the Act, then it is clear that the provisions of section 37 of the Act would not apply. In order to decide whether the suit is maintainable, the ultimate decision in respect of the suit is not the decisive factor. It is the case as made out by the plaintiff in his plaint which is the primary material upon which such decision has to be made. On the case made out by the plaintiff in his plaint the suit has to be taken outside the purview of section 37 of the Act, as mentioned above. We, however, hold that the orders passed by the revenue authorities, including those passed by the Additional Collector as well as those made by the Member, Board of Revenue, were within their competency under the law. It is true that there was a mis‑description of the section under which the sale was challenged by the defendants‑respondents; but, in essence and in substance, the orders that were made by the chain of revenue authorities were strictly within the jurisdiction conferred upon them by the Act. It must, therefore, be held that the order passed by the Member, Board of Revenue, which has been impeached in the suit, is a good order and must prevail. The result of the order is, that the sale upon which the plaintiff bases his title, stood set aside to the extent of the interests of the principal defendants 1 to 5 (respondents before us). There is no difficulty in deciding it. We have arrived at the aforesaid conclusion on consideration different from the reasons which had prevailed with the appellate Court below. It would be seen that the respondents before us (who were the appellants in the appellate Court below) have contested the suit on various grounds amongst which was a point that the auction‑sale was a fraudulent transaction (a) because it took place on a date which was different from the date on which the sale was proclaimed to be held, and (b) because the suit‑properties, which would be worth Rs. 25,000, was sold for a nominal sum that was less than Rs. 4,

000. The Appellate Court below has not applied its mind to the questions and has not properly decided the case. The aforesaid finding would become important for a decision as to whether the sale was a fraudulent one, because, if it is found that it was tainted with fraud, then the entire sale was vitiated and must be treated as a nullity. Inadequacy of price and the factum of the sale having been effected on a date other than the date when it was proclaimed to be held can be treated as circumstantial evidence of such fraud. But, this question has to be decided on all the facts and circumstances of the case. If it is held that the transaction was a fraud, then it must follow that the plaintiff is not entitled to a decree in the suit. It would next be seen that the sale was clearly not held on the day on which it was proclaimed to be held. The plaintiff has simply plumped his case on a dubious piece of evidence, namely, that in the advertisement which purported. to appear in a local newspaper the date mentioned was the date on which the properties ‑ were actually sold. This is contradicted by a series of weighty evidence upon which the appellate Court below has rightly held that the date fixed for the sale was as it appeared to the order‑sheet in respect thereof. The evidence as to the divergence between the date upon which the sale was proclaimed to be held and the date when the properties were actually sold, is overwhelming and the conclusion arrived at by the appellate Court below in this behalf must be upheld. A question arises before us as to what would be the effect of such a finding, namely, that the sale having taken place on a date when the properties were not proclaimed to be sold: whether the sale would be a nullity or whether such deviation from the legal provision would amount to a material irregularity only, that is, the sale would be liable to be set aside on proof of the fact that the party challenging the sale has been adversely affected. On this point there is preponderance of decision in favour of the proposition that the sale is not a nullity but is vitiated by material irregularity and is liable to be set aside on proof of substantial injury suffered by the judgment‑debtors‑vide the decision of Mookerjee J. in the case of Hari Sadhan Roy v. Shib Gopal Mitra (35 C L J 140). J with which decision we respectfully agree. But there is no clear‑1 finding of fact reached by the appellate Court below as to the injury suffered by the judgment‑debtors. Moreover, the appellate Court below also has not adverted to the fact that the reliefs which the plaintiff has asked for, although permissible under the law, are, in essence and is sub stance, in the nature of equitable reliefs and that under appropriate circumstances a Court would be justified in refusing them. On this point also we have not come to any definite conclusion ourselves, but, we feel that the appellate Court below should also advert to this question. In the circumstances indicated above, we feel that the appeal has not been properly decided by the appellate Court below. We, therefore, allow this appeal and set aside the judgment and decree passed by the appellate Court below. It is directed that this case be sent back on remand to that Court for a re hearing of the appeal excluding the interest of the said principal defendants 1‑5, on all the points raised by the parties to the appeal and its disposal in accordance with the observations which we have made above. The appellate Court below is, however, free to reach its own conclusions with regard to the points raised in the appeal, except to the extent of what we have already decided ourselves in this appeal. Costs of this appeal will abide the result of the appeal in the appellate Court below. ABDULLA, J.‑I agree. K. B. A. Appeal accepted.