P L D 1967 Dacca 289 (PLP)

HASAN, J.‑Touzi No. 1201 belonging to the plaintiffs was sold in a revenue sale for arrears of revenue‑on 22nd of September 1953. It appears from the plaint that the plaintiffs filed an appeal before the Commissioner' of the Dacca Division but the same was dismissed on 22nd of September 1955. Thereafter on 18th of February 1956 the plaintiffs instituted the suit giving rise to the present appeal for declaration that the revenue sale of touzi No. 1201 of Faridpur Collectorate held on 22‑9‑1953 was void, illegal and without jurisdiction. The suit was contested by the Province of East Pakistan challenging the assertion made by the plaintiffs in their plaint. In support of the respective cases, the parties led evidence, both oral and documentary. The learned Subordinate Judge, first Court, Faridpur; on consideration of the evidence was of the view that the sale was not a nullity and in this view of the matter dismissed the suit. Hence the present appeal by the plaintiffs. Two points have been urged before us by the learned Advocate for the appellants: The first point is that as the sale was held for arrears of revenue, which accrued during the subsistence of attachment of the estate the sale was a nullity. Section 17 of the Bengal Land Revenue Sales Act (XI of 1859) runs as follows: "No estate shall be liable to sale for the recovery of arrears which have accrued during the period of its being under the management of the Court of Wards; and no estate, the sole property of a minor or minors and descended to him or them by the regular course of inheritance duly notified to the Collector for the information of the. Court of Wards, but of which the Court of Wards has not assumed the management under Regulation VI of 1822, shall. be sold for arrears of revenue accruing subsequently to his or their succession to the same until the minor or minors, or one of them shall have attained the full age of eighteen years, and no estate, held under attachment by the revenue authorities otherwise than by order of a judicial authority, shall be liable to sale for arrears accruing whilst it was so held under attachment. Relying on this aforesaid provisions it has been argued by the learned Advocate for the appellant that as the sale was held for arrears while the estate was under attachment, the sale was without jurisdiction and accordingly null and void. While on the other hand, it has been argued by the learned Assistant Government Pleader that in order to hold that a sale is void and without jurisdiction two ingredients are necessary to be fulfilled(1) that the sale must have been held when the estate was under attachment; and (2) that it must be held for arrears accruing while the estate was under attachment. But in the present case when the sale took place the estate was not under attachment and furthermore there is nothing to show that the sale was for arrears which accrued during the attachment of the estate. In support, he has relied on the case of the Province of East Bengal v. Subodh Chandra Gupta and others (9 D L R 236) on the case of Amjad Sheikh and others v. Siddik Hossain Sikdar and others (8 D L R 217) and the case of Rowshan Ara Bewa and others v. The Collector of Rangpur, representing the Government of East Pakistan (13 D L R 685) and the learned Advocate for the appellant has relied in support of his contention on the case of. Rajah Gobind Lal Roy v. Ramjanam Misser and others (20 I A 165) and the case of Kumar Narendra Nath Roy v. Midnapore Zamindary Co. Ltd., Calcutta (A I R 1940 Cal. 115). In the cases relied on by Mr. Jani Alam it has been held that when a sale of an estate is held during the continuance of attachment under section 7 of the Public Demand Recovery Act, the sale is null and void. So the aforesaid cases are no direct authorities for the proposition that when the estate .is not under attachment, the sale of that estate will be valid and not hit by the provisions of section '17 of the Bengal Revenue Sale Act. Their Lordships of the Privy Council in the case relied on by the learned Advocate for the appellant observed "In the present case the estate was sold for arrears which accrued while it, was subject to an order issued by the Collector under the Cess Act, 1880, for the levy of road cess in arrear. This order, which is termed a `prohibitory order', forbids payment of rent to any person but the Collector until the amount due for road cess is satisfied, and gives priority to the claim for road cess over any demand or claim other than the demand of Government revenue. It was said that such a prohibitory order is not an attachment. In their Lordships' opinion it is an attachment both in form and substance, and an attachment within the letter and meaning of section 17 of Act XI of 1859. In the Calcutta case relied on by the learned Advocate for the appellant it was observed "section does not say that the Collector shall have no jurisdiction to sell during the subsistence of the attachment, but that he will have no jurisdiction to sell for arrears of revenue which had accrued whilst the estate was under attachment. From these two authorities also it appears that when a estate is sold for arrears of revenue accruing during the attachment and during the subsistence of the attachment, the sale of such estate will be without jurisdiction. So all these cases are not of much assistance to the contentions of the learned Advocates. In our opinion, the relevant portion of section 17 will be considered as a whole and after going through it we find that two ingredients are necessary for holding a sale to be without jurisdiction in view of the 'section 17 of the Act: (1) that the estate must be under attachment when the estate is put up to sale and (2) that the sale must be for arrears of the estate accruing while it was under attachment. In the present case the attachment under section 7 was effected so far back as on 2‑3‑1946 and the sale took place on the 22nd of September 1953. But before the sale it appears from the records that on 16th of September 1953 all the 7 certificate cases were struck of and thereafter the sale was held on 22nd of September 1953. From these facts it appears that when the sale took place the estate was not under attachment and accordingly we hold that though the sale was for arrears of revenue which was accruing during the subsistence of the attachment but as the sale was not during the subsistence of the attachment but after the release of the estate from attachment, the sale in question is within jurisdiction and as such is not hit by section 17 of the Revenue Sale Act. The second ground urged is that as the notices were issued against, a dead person, during the subsistence of the attachment and as he amount of claim in Exh. B (1) does not tally with that in Exh. B (2), the issue of notice was without jurisdiction and as such the sale was without jurisdiction. It appears that the notice under section 7 was against the certificate debtor while she was alive but subsequently the: notices under sections 6 and 13 were issued at a time while she was not alive. It further appears that a petition was filed for mutation of the names of the heirs of the deceased proprietor and the mutation was allowed on the 24th August 1953, showing that the heirs of the original certificate debtor were certificate debtors. So the certificate sale was against the present plaintiff's who are the heirs of the original proprietor. As regards the difference in the amount of claim in the two notices we find a. bigger amount in the notice under section 6 but a smaller amount in the notice under section

13. It also appears that there was a garnishee proceedings at the instance of the original certificate debtor and some money was paid in the proceeding; so it might be that after the notice under section 6 of the Act and before the notices under section 13 had been issued some money might have been realised by the time. The above and the issue of notices during the subsistence of attachment may, at best, be called irregularities to show that the sale was not in accordance with law or it might be called against the provision of law but in order to obtain, relief the plaintiff must get rid of the bar of section 33 of the Revenue Sales Act. Relevant section of section 33 of the Revenue Sales Act runs thus: "No sale for arrears of revenue or other demands realisable in the same manner as arrears of revenue are realisable, made after the passing of this Act, shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; and no such sale shall be annulled upon such ground, unless such ground shall have been declared and specified in an appeal made to the Commissioner under section 2 of the Bengal Land Revenue Sales Act, 1868. "‑ It was observed in the case of Rajah Gobinda Lal Roy v. Ramjanam Misser and others (20 I A 165): "Giving, however, full weight to these consideration, their Lordships, having regard to the scheme of the Act and the express direction contained in section 33 are of opinion that in every case where a sale for arrears of revenue is impeached as being contrary to the provisions of Act XI of 1859, no grounds of objection are open to the plaintiff which have not been declared and specified in an appeal to the Commissioner. In the opinion of their Lordships, a sale is a sale made under the Act XI of 1859 within the meaning of that Act when it is a sale for arrears of Government revenue, held be the Collector or other officer authorised to hold sale under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened." We find that neither in the plaint nor in the deposition the grounds taken before the Commissioner have been proved. So there is nothing on record to show that these grounds were taken in the appeal before the Commissioner and as such we do not find any substance in the appeal. Accordingly, this appeal be dismissed without any order as to costs. TALUKDAR, J.‑I agree: K. B. A. Appeal dismissed.