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Judgment
Spencer, J.—The appellant, who purchased the holding of a ryot at a sale held under the provisions of Chapter VI of the Madras Estates
Land Act (Madras Act I of 1908) brought this suit to have it declared that the order of the Deputy Collector setting aside the sale for irregularities
in the issue of notice, on a motion made by the landholder who brought the holding to sale, was ultra vires and void. The suit was instituted in an
ordinary Civil Court. The District Munsif who tried the suit held that as a Judge of a Civil Court he had jurisdiction to entertain it, but that no suit
lay in consequence of the provisions of Order 21 Rule 92(3) Civil Procedure Code. The Sub-Judge, who heard the appeal agreed with him on the
point that the suit was not maintainable, and held that it was also barred by the rule of res judicata. I have no doubt that they were both wrong on
this point.
If the Deputy Collector had held a sale of the ryot''s property in execution of a decree for rent passed by himself or by some other Collector in a
suit instituted under Article 8 of Part A of the Schedule to the Act, the provisions of the CPC relating to the execution of decrees, including Rules
90 and 92 of Order XXI, would by the force of Section 192 of Act I of 1908 have become applicable to this case, so far as Section 132 allowed
it. But when summary proceedings are taken for the recovery of rent by the sale of the ryot''s interest in the land under the provisions of Section 1ll
and the following sections, the Collector has only to follow strictly the specific procedure laid down in the Act for the recovery of arrears without
having recourse to a suit. Under that procedure it is not provided that a Collector may set aside a sale on account of irregular-ties. A sale may be
postponed u/s 121 or stopped by offering the amount due for arrears u/s 122; but when once it is knocked down, the sale becomes final, and
unless the defaulting ryot or some one else interested, deposits the amount of the arrears and the costs of the sale together with 5 per cent of the
price within 30 days and so gets the sale set aside u/s 131, it is imperative for the Collector to grant the purchaser a certificate of sale u/s 124. The
same was the case under the former Rent Recovery Act (See Section 35 of Act VIII of 1865). There is no provision in either Act for sales being
confirmed. Under the former Rent Act it was expressly declared in Section 36 that no irregularity in publishing or conducting a sale of moveable
property would vitiate such a sale, but this was not the case with sales of defaulter''s holdings although the same rules for conducting such sales
were made applicable by Section 40, and it was held in Nathu Achalai Ayyangar v. Partha-sarathi Pillai ILR (1881) Mad. 114 that a suit would lie
in the Civil Courts to question the propriety of a sale of Immovable property under the Act and to have it set aside for irregularities. Doraisamy
Pillay v. Muthuswamy Moopan ILR (1903) M. 94 was an instance of such a suit brought to a Civil Court.
Since the passing of the present Act it has been held that a defaulter can sue in the Civil Courts to have it declared that the sale of his holding
was void for fraud or irregularity in the conduct of the sale. See Chidambaram Pillai v. Muthammal ILR (1914) M. 1042 and Gouse Mohideen
Sahib v. Muthialu Chettiar (1914) M.W.N. 55.
When the prevailing law was that enacted by Act VIII of 1865 a purchaser could have brought a suit such as the present to declare that the
Deputy Collector had no power to set aside a sale once completed See Velli Periaya Mira v. Modin Padsha ILR (1886) M. 332 and in this
respect too the enactment of Act I of 1908 has not effected any alteration in the law.
There being no other substantial objection to the plaintiff succeeding in this suit, the decrees of the lower courts are reversed and the plaintiff will
be given a declaratory decree as prayed for with costs throughout from 1st defendant.
Krishnan, J.
The lower courts have dismissed the plaintiff''s suit as barred by Order 21 Rule 92 Clause (3) C.P.C. (Act V of 1908) and hence this Second
Appeal by him.
He purchased the 2nd defendant''s father''s holding at a rent sale held u/s 118 of the Estates Land Act when sold in public auction for arrears of
rent due by the latter as a ryot to his landholder, the 1st defendant, who is the proprietor of the South Vallur Estate. The Revenue Inspector who
was appointed as the Selling Officer u/s 116 of that Act accepted the plaintiffs bid and knocked down the property to him and received payment
of the sale price as provided for in Section 123. No application was made for setting aside the sale u/s 131. Nevertheless the Deputy Collector,
acting on a petition put in by the 1st defendant''s manager which alleged certain irregularities in the conduct of the sale and consequent loss by the
holding being sold for a grossly inadequate price, set aside the sale and directed a resale. A review petition by the plaintiff was rejected after
hearing the parties and the original order was confirmed.
Plaintiff has brought the present suit to have it declared that his purchase was a valid one and that the order setting it aside and directing a resale
was without jurisdiction and null and void and not binding on him.
In making his order the Deputy Collector purported to act under Order 21 Rule 90 C.P.C. read with Section 192 of the Estates Land Act. The
lower courts have supported this view and it is thus necessary to examine these provisions to see if that view is correct.
Section 192, Estates Land Act, no doubt makes Rules 90 and 92 applicable to proceedings under the Act for the corresponding Sections
311, 312 and 314 of the old Code are not excepted sections in Section 192 Clause (a). To decide the question as to what proceedings in
particular they apply and whether they apply to the rent sale proceedings before us, we must examine the language of those rules themselves. Now
if we turn to Rule 90 we find that it applies only to cases where Immovable property has been sold in execution of a decree; the rule therefore
cannot be applied except to such sales, as its language precludes its application to sales in general even though made through court officers. The
difficulty in applying this rule to the rent sale before us is that it was not made in execution of any decree at all. An examination of Sections 111 to
134 of the Estates Land Act which deal with such rent sales does not disclose anything in the nature of a decree being passed; there is no
adjudication by the Collector of any rights of the parties. Neither the sale of a holding nor that of property distained u/s 96, Estates Land Act can
with any justification be held to be a sale in execution of a decree. It seems therefore to be clear that Rule 90 cannot be applied to such sales.
It was suggested that this view would nullify the effect of the application of Rule 90 to proceedings under the Estates Land Act. That is not so,
because the rule would apply to sales in execution, for example, of rent decrees passed by the Revenue Courts.
If Rule 90 does not apply, Rule 92 also cannot apply and the bar pleaded to the present suit under Clause (3) of the latter Section fails.
It is conceded that no section of the Estates Land Act taken by itself gives the Deputy Collector power to set aside the sale of a holding for
any irregularity, In the case of sale of distrained property Sections 103 and 104 make some provision for ordering a resale for certain irregularities
mentioned in the latter section. But no such provision exists in the case of sales of holdings. In fact the language of Section 124 seems to preclude
the idea of the sale of a holding being set aside for irregularity, for under Clause (2) thereof the Collector is bound to grant a certificate of sale to
the purchaser when the purchase money is paid u/s 123 save in the sole instance of an application u/s 131 having been made and granted. Section
131 deals only with an application to set aside the sale of a holding on payment of the amount specified in the proclamation of sale and costs to the
landholder less any amount paid to him subsequently, and 5 per cent of the purchase money to the purchaser; it is similar in character to Rule 89 of
Order 21 C.P.C. That section has nothing to do with cases of irregularity in publishing and conducting sales. If we turn to Schedule B to the
Estates Land Act which mentions the various applications that can be made under the Act we find that it makes no mention of any application to
set aside the sale of a holding for any irregularity the only applications referred to therein in this connection being applications under Sections 114,
131 and 133. See Nos. 18, 19 and 20 of that schedule. It seems therefore that the legislature did not contemplate applications based on
irregularities to set aside rent sales of holdings.
It cannot be argued that the sale remained incomplete till the Deputy Collector decided whether the bid of the highest bidder should be
accepted or not: for under Sections 118 to 123 of the Estates Land Act that duty seems to be cast on the selling officer,
It seems therefore impossible to avoid the conclusion that the Deputy Collector had no power to set aside the sale to the plaintiff as he did and
his action in doing so was ultra vires, In these circumstances it is conceded that the Civil Court had jurisdiction to give a declaration declaring the
invalidity of the order and the validity of the plaintiffs purchase. See Chidambaram Pillai v. Muthammal ILR (1914) M. 1042 where also the order
was found to be without jurisdiction. The suggestion that on the above view a person who has suffered loss on account of irregularity or fraud in
the conduct of a rent sale of a holding will be left without a suitable remedy is, even if it is correct about which I express no opinion, not one we
can take into consideration in deciding the question before us as our decision must depend entirely on the provisions of the law as we find it.
It was finally argued that without getting a sale certificate u/s 124 of the Estates Land Act plaintiff is not entitled to a declaration of his title to
the land. But that is not the declaration he is claiming. His prayer is to declare that his purchase is valid and that the order setting it aside is invalid.
Such a declaration cannot be treated as a futile one as the Revenue authorities will no doubt act according to it when produced to them and give
plaintiff a sale certificate and possession of the land as required by Section 124.
No objection having been raised in this suit to the validity of the plaintiff''s purchase on the merits and it not being explained how plaintiffs suit is
barred by limitation though an issue was raised on the point as additional issue No. 5 and the Deputy Collector''s order setting aside his purchase
being found to be ultra vires, we must give him the declaration he has asked for in the plaint.
The decrees of the lower Courts must therefore be reversed and plaintiff''s suit decreed as prayed for with costs throughout against the 1st
defendant.