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Judgment
Two questions arise for determination in this appeal. First, was the sale of the lands in question bad for the reason that the requirements of
Section 18 of the Act (VIII of 1865) with reference to the public notice were not complied with? Secondly, was the suit bad for misjoinder of
parties and causes of action?
As regards the first question Section 18 requires a notice to be fixed up specifying the property to be sold and the time and place fixed for its
sale and provides that in fixing the day of sale not less than seven days must be allowed from the date of the notice. The time fixed for the sale was
the 22nd, 23rd, 25th and 26th of April.
The notice was dated the 14th of April, but the District Munsif found, and there was evidence to support the finding, that it was not published till
the 16th i.e., less than seven days before the first day fixed for sale. The District Judge was of opinion that the evidence did not establish that the
notice was published less than seven days before the earliest of the four days fixed for the sale.
In thus placing the onus on the plaintiffs we are clearly of opinion that the learned Judge was wrong. It is for the landlord who seeks to avail
himself of the special procedure by way of distress provided for by the Act. to show that the requirements of the Act have been complied with,
See the judgment of the Privy Council in Maharajah of Burdwan v. Tarasundari Debi ILR 9 C. 619 and Nattu Achalai Ayyangar and Anr. v.
Parthasaradhi Pilli ILR 3 M 114 Mahomed Zamir v. Abdul Hakim and Anr. ILR 12 C. 67 Hurro Dayal Roy Chowdhry v. Mahomed Gazi
Chowdhry and Ors. ILR 19 C. 699 . The learned Judge further heid that even if the sale notice was published only six days before the sale this
amounted merely to an irregularity which would not vitiate the sale. Here again we think he was wrong. Section 40 provides that the sale of a
defaulter''s interest in land should be conducted under the rules laid down for the sale of moveable property distrained for arrears of rent and
Section 36 provides that no irregularity in publishing or conducting a sale of moveable property under the Act shall vitiate the sale, but that any
person who has sustained damage by reason of the irregularity may bring a summary suit before the Collector to recover compensation for the
damage. It was argued that Section 36 and Section 40 must be read together and that the effect of Section 36 is imported into Section 40 so as to
make the provisions of Section 36 with reference to sales of moveable property applicable to a sale of land distrained for arrears of rent. Such a
construction cannot be adopted without doing violence to the express words of the section,
Section 36 introduces an exception to the general rule that prima facie non-compliance with the requirements of the Act will vitiate a sale. The
exception is expressly limited to the case of moveable property ; and it may be said there is good reason for this. Damage sustained by irregularity
in the sale of moveable property could in all cases be met by pecuniary compensation. it is quite conceivable that damage sustained by irregularity
in the sale of land could not.
It seems to us impossible to treat the enactment contained in Section 36 as one of the rules laid down for the sale of landed property referred to
in Section 40. The ratio decidendi of Nathu Achalai Ayyangar v. Parthasarathi Pilial ILR 3 M. 114 appears to us to be applicable to the facts of
the present case.
It was also contended that inasmuch as the sale did not in fact commence until the 23rd, a notice published on the 16th would be published
seven days before the sale and the requirements of the section would be met. The short answer to this contention is that the section does not
require that the notice should be published seven days before the sale takes place, but that in fixing the day of sale not less than seven days must be
allowed. August 22nd was none the less the fixed day of sale, because as events turned out, no sale in fact took place on that day. In our judgment
the sale was bad and must be set aside.
As regards the second question, the District Munsif was of opinion that the suit was bad for misjoinder. In the view taken by the Judge it was
not necessary for the lower appellate court to decide the point. In our judgment the suit is not bad for misjoinder. The right to relief alleged to exist
against the several defendants is in respect of the same matter (see Section 28 of the Code of Civil Procedure), viz,, the alleged wrongful sale of
the plaintiff''s lands. In a sense of course the sale of every item of the property sold constituted a separate sale, but the ""matter"" was the same; the
sale was a sale of distrained property under the same notification and in respect of the same arrears. The proceeding in which the various items
were sold was one, and the ground upon which the validity of the sale was impugned is the same in each case. The same defect vitiates the whole
proceeding and is the common ground of attack. The cause of action is the same as against all the defendants. In the case to which Mr
Krishnasamy Aiyer referred (G. Burstall v. Beyfus 26 Ch. D p. 35) the cause of action alleged against defendant A was distinct from the cause of
action alleged against defendant B. Even if the words "" in respect of the same matter"" occurring in Section 28 of the CPC warrant a narrower
construction being placed upon the section than that which the English Courts have adopted with reference to the corresponding English Rule
(R.S.C. Order XVI Rule 4), we feel no doubt that the ""matter"" in the present case is the same. As regards the Indian authorities, reference need
only be made to Byathamma v. Avulla ILR 15 M. 19 Gangi v. Addala Ramasami ILR 25 M. 736. Raghunatha Makund v. Sarosh K.R. Kama
ILR 23 B. 266 and Hira Lal Mozumdar v. Prosunnachunder Biswas 2 C.L.R. 556. Mr. Krishnasamy Iyer sought to distinguish the last mentioned
case on the ground that when, as in that case, a suit was brought under the provisions of Section 283 of the Code, the making of the order
constituted the case of action. But this is not so. When a suit is brought under that section, the attachment is the cause of action and different
purchasers of the attached property may be properly joined as defendants in the same suit. So here the wrongful sale is the cause of action, and the
different purchasers at the sale were rightly joined as defendants.
We think the plaintiffs are entitled to the declaration for which they ask. We accordingly set aside the decrees of the lower Courts and make the
declaration as prayed. The plaintiffs are entitled to their costs throughout.