Pirthvi Chand Lal vs Kirtyanand Singh and Others

Wort, J.—This is an appeal of the plaintiff from the decision of the learned District Judge of Monghyr in an action which was brought to set aside a sale under Act 11 of 1859. The property consisted of Tauzi No. 2480-1 in Mahal Amanatpur representing 5 annas 6 gandas share and Tauzi No. 2480 representing 2 annas 13 gandas share in the same mahal. The property originally was that of the Srinagar Raj but the plaintiff had purchased it in execution of two mortgage decrees. The defendants are the Banailli Raj and purchased them in the sale of 7th January 1924. The case for the plaintiff was that he was unaware of the sale until March 1924.

The facts so far as they are relevant are these: the dates which have been fixed u/s 3 of the Act 11 of 1859 were

First kist ... 7th June. Second kist ... 28th September. Third kist ... 12th January. Fourth kist ... 28th March.

It is admitted and indeed it is quite clear from the record of the case that the kist dates fixed u/s 2 of the Act are unknown. The kist due on 7th June for Tauzi No. 2480-1 was Rs. 33-10-0 and for September Rs. 44-13-0 and the kist for 7th June for Rs. 2480 was Rs. 16-1-0 and for September Rs. 23-9. In both cases the sums payable on 7th June were remitted on 6th June and were received on 9th June. Those payable on 28th September were remitted on 25th September and reached the Collectorate on 26th September. It is obvious therefore that those payable on 7th June ware two days late but those payable in September were received before the due date. The sale was held with a notice issued u/s 5, Act 11 of 1859 fixing the date under that section as 28th September kist treating the estate to be in arrear.

Some argument was addressed to us on the question of whether the sale was held for 7th June kist so called or 28th September but I think it is quite clear from the record that the sale purported to be held for the September kist and, that it cannot be said in the circumstances that the Collector was entitled under the Act to sell by reason of the omission to pay the June kist by 7th June; for this reason a notice was issued u/s 5 of the Act under which the date given for payment of arrears was 28th September. It is argued therefore that all payments due were in fact made before that date. It was faintly argued that the sums paid were not accepted as against the sums due but were placed on deposit in the Collectorate. I do not think this argument can prevail but that if the payments were received the Collector had no other course open to him than to credit the sums paid against the sums due.

But the main contention by Mr. C.C. Das was this that the case did not come u/s 5 at all as the property was not under attachment and that no notice u/s 5 was required and the only question which the Court could look into was whether there were arrears within the meaning of Section 2, that knowing as we do the dates, 7th June and 28th September were the last dates fixed by the Board of Revenue u/s 3, there must have been in fact and in law arrears within the meaning of Section 2. He further argued that it mattered not whether the Collector has sold in contravention of his notice u/s 5 but the very existence of the arrears gave him jurisdiction and his non-compliance with his own notice u/s 5 was a mere illegality or irregularity. Further points arise out of this argument and I shall make reference to them later, but as it will be seen the argument depends to some extent on whether the property was under attachment or not. There is a good deal to be said in favour of the view that the property was not under attachment but this involves a question of fact and as all the Courts below have proceeded on the view that it was property covered by Section 5 I do not think that we at this stage can question that matter more especially as no party has raised this question before the case came before this Court. I am therefore of the view that it is a case u/s 5 and the question which arises must be decided accordingly.

For the appellant it is argued (and this is the only point now relied upon) that there were no arrears and that therefore the Collector had no jurisdiction.

Now let me reiterate. The date fixed was the latest date on which payment should be received failing which payment the Collector had jurisdiction to sell. Mr. Sushil Madhab Mullick''s argument in substance is this that the matter is one of jurisdiction: that the Collector had no jurisdiction to sell if in fact the arrears were paid up before 28th September and that it is quite dear in this case that they were so paid. I should have mentioned that an application was made to set aside the sale and an appeal was filed before the Commissioner but was out of time and it is contended by Mr. C.C. Das that as the grounds which are now advanced have not been specified in the appeal before the Commissioner u/s 25, the civil Court had no jurisdiction to set aside the sale (Section 33, Act 11 of 1859). In answer to this point Mr. Sushil Madhab Mullick reiterates his argument that as this is a matter of jurisdiction, there is no such prohibition as Mr. Das contends for. I think it is now well established that if there were in fact or law no arrears there was no jurisdiction in the Collector to sell.

In order to decide the case it is necessary to see what the proper construction of Sections 3 and 5 of the Act are Section 3, as I have stated, is the section which makes an estate liable for sale. In other words, as a condition precedent to sell, there must be a default in payment by the date fixed u/s 3 (which fixes the date upon which all arrears are to be paid), The contention of Mr. Sushil Madhab Mullick is that the Collector having issued his notice u/s 5 it has the effect of extending the date given u/s 3. In other words Section 3 gives jurisdiction to the Collector after the date therein fixed. Section 5 is an exception to Section 3 and has the effect of fixing another date other than that fixed by the Board of Revenue u/s 3 in those cases which are contemplated by Section 5 and that this is one of such cases.

Now a number of authorities have been relied upon, but it seems to me that the only case from which the respondent can get any real assistance is the judgment of the Privy Council in the case of Govind Lal Roy v. Ramjanam Misser [1894] 21 Cal. 70. That was a case in which the property being an estate under attachment by the Board of Revenue was sold in contravention of Section 17, Act 11 of 1859. That section provides that 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, etc., shall be sold for arrears of revenue accruing subsequently to his or their succession. And no estate held under attachment by the revenue authorities, otherwise than by an order of a judicial authority, shall be liable for sale of arrears accruing whilst it was so held under attachment, etc. Lord Macnaghten delivering the judgment of their Lordships, of the Privy Council stated thus:

Giving however full weight to these considerations, 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 11 of 1859 no grounds of objection are open to the plaintiff which have not been declared and specified in an appeal to the Commissioner.

He further adds:

In the opinion of their Lordships a sale is a sale made under the Act 11 of 1859 within the meaning of that Act when it is a sale for arrears of Government revenue, held by the Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act, either by reasons of some inegularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened.

And later he says:

It is difficult to suppose that the introduction of that sentence into the Act of 1859 (the sentence being u/s 33, "and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of) could have been intended to have the effect of excluding from Section 33 all cases of illegality as distinguished from irregularity,

and then Lord Macnaghten adds that it would have been most unfortunate if their Lordships had to construe the Act as it had been heretofore construed in India having regard to certain considerations he therein mentions.

Now it is perfectly clear from the passage to which I have made reference that the Judicial Committee of the Privy Council places cases of illegality on the same basis AS mere irregularity. Now it is contended by Mr. C.C. Das that what gives the Collector jurisdiction to sell is not the dates which are fixed by the Board of Revenue u/s 3 or extended in effect by Section 5 in those cases which come under that section, but merely the existence of arrears u/s 2. On the other hand it is contended that what gives the Collector jurisdiction to sell is noncompliance by nonpayment by the date fixed u/s 3 and if in fact there is a payment by that data there are no arrears and consequently the Collector has no power to sell, in other words, that Section 3 in one class of case and Section 5 in another class has the effect of extending the date. For the purpose of this argument I am treating Section 5 as a mere exception to Section 3 and I think that must be so and for this reason. Section 3 fixes a date generally, u/s 5 there is another date fixed.

I therefore think that it is correct that Section 5 is an exception to Section 3. Therefore the case must be decided on that basis.

Now to revert. The argument as I said, was that this was not a question of arrears u/s 2, but whether the payment has been made by the date fixed u/s 3 or Section 5 has been complied with or not; that gives jurisdiction. Section 3 says:

Shall be paid up in each district in default of which payment the estate in arrear in those districts shall be sold at public auction.

I have left out the words in the section which are unnecessary for the purpose of this argument, it is argued therefore that the Court had no jurisdiction. It was illegal to sell before the date fixed u/s 3 or as in this case u/s 5.

Now let us look to Section 17 which was the subject of the case to which I have referred. No estate held under attachment by the revenue authorities shall be liable to sale for arrears accruing whilst it was so held under attachment. There is a direct prohibition under that section and Section 3 says default may result. It seems to me quite immaterial whether the section is worded by way of prohibition as Section 17 or whether it be worded in the manner of Section 3 which definitely gives jurisdiction in certain cases. Indeed when there is a direct prohibition I think this might be said that no jurisdiction can exist which is in defiance of that prohibition and to that extent a case u/s 17 is on stronger ground in favour of the argument advanced by the respondent than a case u/s 3 or u/s 5. Lord Macnaghten has dealt with the prohibition in Section 17 as an illegality; it cannot be questioned in the civil Courts unless Section 33 has been complied with. Personally I cannot see how the case coming u/s 3 or Section 5 can be in any better position for the purpose of setting aside the sale than a case coming u/s 17. It is argued that if it is Section 3 or Section 5 which gives jurisdiction and not the existence of arrears as defined u/s 2, it is difficult to see why the legislature enacted Section 2. The reason is clear, it is argued, i.e., to create jurisdiction in the Collector to sell. If that is not correct it seems to me that that section is redundant. Arrears exist in the ordinary acceptation of the term when a payment is not made on its due date and it would have been sufficient for the legislature to have fixed latest days of payments u/s 3 and Section 5 as it has done.

There is a great deal to support this argument, and in the judgment of Das, J., in the case of Jagdishwar Narayn Vs. Md. Haziq Hussain and Others, it was held that a sale before the last day fixed for payment u/s 3 was a mere illegality and that that was insufficient to set aside the sale and that case of Govind Lal Roy v. Ramjanam Missir [1894] 21 Cal. 70 was relied upon. It is true that from some points of view the opinion expressed was unnecessary for the point which was actually to be decided, and when the case went before the Judicial Committee of the Privy Council in Jagdishwar Narayan v. Muhammad Haziq Hussain AIR 1926 P.C. 126 the view expressed by Das, J., on this point was not referred to. In the judgment of Kulwant Sahay, J., in Shama Kant Lal and Another Vs. Kashi Nath Singh and Others, the judgment of Newfound, J. in the case of Amrita Lal Roy v. Secy. of State 46 Ind.Cas. 447 was referred to. The passage in Newfound, J.''s judgment referred to was in the following terms:

The liability of an estate to sale under the Act depends on three dates....The estate is not liable for sale under the Act unless the arrear of revenue remains unpaid on the latest date as fixed u/s 3.

This passage of the judgment was relied upon by the appellant, but it seems to me that the matter is concluded by the case of Haji Buksh Ilahi v. Burlav Chandra Kar [1912] 39 Cal. 981 before the Judicial Committee of the Privy Council. The facts of the case so far as they are relevant are these. The appellant''s predecessor-in-title executed a kabuliyat in 1874 in which he undertook to pay a jama in the Collectorate within 28th June of every year. The Holding''s were Government tenures which came under Act 11 of 1859. The estate fell into arrears and was sold on 16th March 1903, to the respondent. Lord Shaw in delivering the judgment of the Board referred to Section 2, Act 11 of 1859 and stated that the date when by statute the revenue was considered in arrear was 1st July 1902. And then he proceeded to ask the question, at what date was the default made in paying the arrears of revenue so as to entitle a sale of the estate to be made. He proceeds to say that the answer sufficiently appears from the statute itself, and then proceeds to set out the provisions of Section 3 of the Act, under which the Board of Revenue is to determine upon what dates arrears of revenue shall be paid up, in default of which payment the estates in arrears shall be sold at public auction. The data fixed under the Act was 28th June each respective year. It was then stated that the date on which payment of the arrears of 1902 was to be made must be 28th June 1903. Their Lordships then go on to hold that a sale prior to that date, namely, on 16th March 1903, was without jurisdiction. In this case before us 28th September was the date fixed. It is true that so far as the June instalment was concerned the payment was made a day or two after, but the September instalment was paid two days before 28th September. As 28th September was the date fixed u/s 5 it is obvious that there were in fact no arrears on that date. Therefore it seems to me, on the authority of the case which I have just referred to, that the sale was without jurisdiction. There is further the recent case of AIR 1931 57 (Privy Council) in which their Lordships decided that a sale before the date fixed as the last date of payment u/s 3 was without jurisdiction.

The result is that the appeal must be allowed with costs throughout.

Mohamad Nur, J.

These two second appeals arise out of two suits instituted by the plaintiff-appellants for setting aside sales held under Revenue Sale Law (Act 11 of 1859). The trial Court decreed the suits and set aside the sales, but on appeal the learned District Judge of Monghyr reversed the decree and dismissed the suits. The facts are these: Estate Amanat Sarkar Tauzis Nos. 2480 and 2480-1 belonged to Srinagar Raj and were purchased by the plaintiffs in execution of a mortgage decree in February 1922. Estate No. 2480 is of 2 annas 13 gandas share and No. 2480-1 of 5 annas 6 gandas. The latest days of payment of revenue for these two estates as prescribed by the Board of Revenue u/s 3 of the Revenue Sales Law are 7th June, 28th September, 12th January and 28th March.

In the present suit we are concerned with the first two dates only. The amount, the latest date of payment of which was 7th June 1923 was Rupees 16-13-0 for Tauzi No. 2480, and Rupees 33-10-0 for Tauzi No. 2480-1 and the respective amounts for the two estates, the latest date of payment of which was 28th September 1923, was Rs. 23-9-0 and Rs. 44-13-0. The plaintiff who is a resident of Purnea sent the amounts, the latest day of payment of which was 7th June 1923, by money orders which were received two days late, that is, on 9th June 1923. They were not credited to the accounts of the two estates, but kept in what the learned District Judge says "revenue deposit." It appears that a receiver was appointed by the civil Court and placed in charge of the Srinagar estate and his name was recorded in the Collectorate registers, The authorities therefore treated these estates as coming under Exception thirdly of Section 5 of the Revenue Sale Law and before proceeding to sell them for the defaults on 7th June proceeded under that section and issued notices asking payments of the amounts of which the latest day of payment was 7th June and 28th September 1923 by 28th September 1923. The amount for which the latest day of payment in respect of the two estates was 28th September 1923, were again sent by money order and were actually received on 26th September 1923, two days before the date of payment fixed.

22.It is apparent that the Tauzi Department of the Monghyr Collectorate ignored the money which had been received in respect of the two estates on 9th June 1923, and treating the estates to be in arrears for default of payments of the amounts the latest day of payment of which was the 7th June proceeded to sell them and they were sold on 7th January 1924. The plaintiff preferred appeals to the Commissioner long after the prescribed period and they were-rejected as being out of time. I ought to have mentioned that in the notices issued by the Collector u/s 5, Revenue Sales Act, which are Exs. E and E-1 in the case the amount required to be paid was incorrectly mentioned. It is unnecessary to discuss it as it is an admitted fact and it is clear from the Tauzi ledger of the two estates that the amounts payable were what I have indicated above and that the amount mentioned in Exs. E and E-1 are incorrect, The facts which I have enumerated above are all admitted, After the rejection of the appeals by the Divisional Commissioner, the plaintiffs have instituted these suits for setting aside the sale. It is unnecessary to discuss the various grounds urged in the plaint as first of all it is a settled law that no amount of irregularity or illegality will vitiate a sale unless the grounds are specifically taken in an appeal to the Commissioner presented u/s 33, Revenue Sales Act, and secondly, any defect in the service of notices, etc., are cured by the provision of Section 8, Act 7 of 1868 (B. C). In this case it is clear that the appeal by the plaintiffs to the Commissioner being out of time was no appeal in the eye of the law and that sale certificates having been granted the illegality or irregularity, if any, in publishing of the notices etc., cannot now be gone into by the civil Court.

The learned advocate for the appellant has urged one and one ground only, namely, that the estates were not in arrears. It is again a settled law that if the Collector sells an estate without there being an arrear his act is ultra vires and without jurisdiction and the provision of Revenue Sales Act has no application to such a sale and the civil Courts can set it aside on the ground of want of jurisdiction and the suit is not barred either by the provision of Section 33, Revenue Sales Act, or by the provisions of Section 8, Act 7 of 1868 (B. C): vide Balkishen Das v. Simpson [1898] 25 Cal. 833 and Krishna Dayal Gir v. Irshad Ali Khan 31 Ind.Cas. 965 and the cases cited therein. Mr. C.C. Das who appears for the respondent has conceded that if it can be shown in the present suits that the Collector held the sale without there being an arrear his act was ultra vires and without jurisdiction and the plaintiff is entitled to succeed. I therefore proceed to consider whether or not there was an arrear in the present case. In order to find out what is an arrear and when the Collector''s jurisdiction to proceed to sell commences, it is necessary to decide on what particular date an arrear standing against an estate gives the Collector jurisdiction to sell it. I would therefore deal with the scheme of the Revenue Sales Act. Section 2 of the Act defines an arrear. It says that:

If the whole or a portion of a kist or instalment of any month of the era according to which the settlement and kistbandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue.

Therefore if one can find the various instalments fixed for a particular estate the amount of any instalment remaining unpaid on the 1st day of the next month becomes an arrear. In this case there is no evidence on the record to show what was the instalment or kist fixed for the payment of the land revenue of these particular estates. Therefore it cannot be decided how much money became an arrear on the first day of any particular month. Section 3 then empowers the Board of Revenue to fix latest day of payment for the arrears which had already fallen due under the provisions of Section 2. It is to be noted that this latest day is in common language spoken of as the kist day, that is, the day on which the instalment of revenue becomes due. In fact it is not so. It is the latest day for payment of an instalment which had already become an arrear. The question has been very elaborately dealt with by Kulwant Sahay, J. in Shama Kant Lal and Another Vs. Kashi Nath Singh and Others, and Amrit Lal Roy v. Secy. of State 46 Ind.Cas. 447 and has been appreciated by the learned. District Judge in these suits. He says as follows:

In the Revenue Sales Law there are three vital dates to be considered in a case like this. The first is what may be called the kist date, that is, the actual date contracted for payment of an instalment of revenue in the original settlement papers. In the present case those papers are not before the Court and it is not possible to say with absolute certainty what those dates are. The second day is what may be called the arrear date, that is the first of the month next-following the kist date. On this date the instalment of kist if still unpaid becomes an arrear: Section 2, Act 11 of 1859. The third is the latest day of payment fixed by the Board of Revenue u/s 3 after which an arrear still unpaid renders the estate liable to sale.

These are taken practically from the remarks of Newfound, J., in the Calcutta High Court case referred to above. The learned District Judge proceeds:

The word "kist" here however does not mean the instalment of revenue or date fixed for payment thereof in the settlement contract. The Board''s Tauzi Manual defines kist as the period between one latest day of payment on which such a period expires.

The contention of the plaintiff in the plaint was that the 7th June and 28th September being the kist days, that is, the days on which the instalments were payable the amounts did not become arrears till after 1st July and 1st October 1923, and money having been received on 9th June in one case and 26th September in the other the estates were not in arrear. No doubt there are some cases which support the contention of the plaintiffs that the kist days mentioned above are the real instalment days and that the amounts payable on those dates do not become arrears till the first of the next month. This seems to be the view taken by their Lordships of the Privy Council in the case of Haji Buhsh Ilahi v. Durlav Chandra Kar [1912] 39 Cal. 981 and a recent decision of their Lordships On an appeal from this Court AIR 1931 57 (Privy Council) . In the first of these two cases there was an original kistbandi before the Court and it is not clear whether it was not so in the second case. Such a view however is in direct conflict with the judgment of Das, J. in Jagdeshivar Narayan v. Muhammad Hasiq Hussain AIR 1924 Pat. 537 which was affirmed by the Privy Council Jagadeshwar Narayan v. Muhammad Haziq Hussain AIR 1926 P.C. 126. I therefore do not propose to decide this case on this basis. If however the plaintiffs'' contention is sound there is no doubt that the sale is ultra vires, because the amounts due were in each case paid before they became arrears. I shall deal with the above two eases later on in another connation. Therefore, so far as the present case is concerned, there is no evidence of instalment fixed for these estates.

I shall take it that the amount fixed for payment on the 7th June and 28th September, in respect of the two estates are really the amounts which became arrear prior to these two dates, and that these two dates are the latest dates for the payment of such arrears and in the rest of this judgment whenever I use the kist day or kist it means the latest day for the payment of the arrear already fallen due and the amount of such an arrear respectively. The learned advocate for the respondent contends that if an estate is in arrear and the Collector proceeds to sell it even before the latest day for payment has arrived his act is within his jurisdiction; and however illegal or irregular this may be, the sale cannot be set aside unless the requirement of Section 33, Revenue Sales Act, has been complied with. I am unable to uphold this contention. No authority has been placed before us for this very wide proposition. The learned advocate relies on the observation of Das, J., in the case of Jagdishwar Narayn Vs. Md. Haziq Hussain and Others, . In that case the first Court had set aside the sale on two grounds: first of them was that he took the latest day of payment to be the instalment day and held that the amount of kist payable on the latest day fixed by the Board of Revenue did not become an arrear till the first of the succeeding month. Das, J., held that that view of law was erroneous. Then he proceeds and observes that if that view of law is incorrect, in his opinion, the Collector is empowered to sell even before the latest date of payment on the ground that an arrear had already accrued. This remark is relied upon by the learned advocate for the respondent. I shall deal with this later on. Ground 2 on which the first Court had set aside the sale was that in the notices issued u/s 6, Revenue Sales Act, certain properties included in the estate were left out, and relying upon the Full Bench decision of Krishna Dayal Gir v. Abdul Gaffar [1917] 2 Pat. L.J. 402 he held that this omission was fatal as affecting the jurisdiction and the sale was null and void. Das, J., (Macpherson, J. concurring) though disagreeing with this view felt bound to follow the Full Bench case and dismissed the appeal.

This case went up to the Privy Council and their Lordships in fact overruled the Full Bench case and upheld the view of Das, J., on this point with the result that the sale was upheld: vide Jaga. deshwar Narayan v. Muhammad Haziq Hussain AIR 1926 P.C. 126. Their Lordships held that the omission to include any property from notifications issued under the Act did not affect jurisdiction. There is nothing in the judgment of their Lordships of the Privy Council about the observation of Das, J., expressing his opinion that the Collector can proceed to sell the estate in arrear even before the latest date of payment has arrived. The observations were unnecessary for the decision of the case and were outside its facts. This was an obiter dictum and not binding upon us; and for the reason which I shall presently give I beg to differ from it with respect. Section 3, Revenue Sales Act, is explicit on the point. It says:

Upon the promulgation of this Act, the Board of Revenue at Calcutta...shall determine upon what dates all arrears of revenue...shall be paid up in each district under their jurisdiction, in default of which payment the estates in arrear in those districts...shall be sold at public auction to the highest bidder.

It is clear that the liability of the estate to be sold arises not on the estate being in arrears but on the arrears remaining unpaid on the latest dates fixed. Then Section 6 provides that

The Collector or other officer duly authorized to hold sales under this Act shall, as soon as possible after the latest day of payment fixed in the manner prescribed in Section 3 of this Act, issue notification in the language of the district etc.

The power, of the Collector therefore to proceed to sell commences after the latest day of payment and not upon the accrual of the arrears and the last clause of Section 6 says that no payment or tender of payment, made after sunset of the said latest day of payment, shall bar or interfere with the sale, either at the time of sale or after its conclusion. This also shows that payment on or before the latest day bars the sale. Section 3 is the only section which makes an estate liable to sale and it does so if the arrears remains unpaid after the latest day fixed. This is the only section which gives the jurisdiction and that after sunset of the latest day. It may be argued that Govind Lal Roy v. Ramjanam Misser [1894] 21 Cal. 70 by implication holds otherwise. Section 17 of the Act prohibits the sale under certain circumstances and their Lordships have held that disregard of this prohibition does not affect jurisdiction. But it is not so. Section 3 of the Act gives jurisdiction. Section 17 prohibits the exercise of that jurisdiction under certain circumstances.

Want of jurisdiction is one thing and disregard of prohibition after the commencement of jurisdiction is another, and I have already said that the jurisdiction commences after the arrears remain unpaid on the latest day of payment. This view is supported by the remarks of Kulwant Sahay, J., in the case of Shama Kant Lal and Another Vs. Kashi Nath Singh and Others, and of Das, J. at p. 741 (of 6 P.L.T.) of Suraj Narayan Chaudhary Vs. Saraswati Bahuria and Others, . This view is the ratio desidend of the decision of their Lordships of the Privy Council in Haji Baksh Ilahi v. Durlav Chandra Kar [1912] 39 Cal. 981. In this case the sale was of a holding governed by Act 11 of 1859. The rent (or revenue) was payable on 28th June 1901, and according to Section 2 of the Act became an arrear on 1st July of that year but the sale was held on 16th March 1903. Their Lordships observed:

The date when by statute accordingly this revenue was considered in arrear was 1st July, 1902. At what date was default made in paying that arrear of revenue, so as to entitle a sale of the estate to be made ? This, which appears to their Lordships to be the Teal question in the case, is clearly answered by the Act of 1859 itself and by the notification which followed thereon. By Section 3 of the Act; "The Board of Revenue at Calcutta...shall be sold at public auction to the higher bidder.

Their Lordships quote Section 3 of the Act:

Bearing in mind that the whole provisions with regard to sales are, in the language of Lord Watson, ''framed upon the express footing that they are to be applicable to the sale of estates which are in arrear of duty,'' and that this tenure could not be considered in arrear until 1st July 1902, it appears fairly clear that 28th June 1903, is the first date under the proclamation and the statute when there has arisen such a default as would enable that "tenure in arrears" to be sold....The statute having by plain implication forbidden the estate to be considered in arrear until 1st July, it appears to follow that the date fixed as that on which tenures in arrear will be sold must be the succeeding 28th June, namely, in the year 1903. This estate however was sold in the previous month of March, and their Lordships agree with the view of the Subordinate Judge in thinking that the sale is accordingly invalid....Their Lordships agree with the view that the notification must, having regard to this section of the statute which authorized it, be applied to the present estate as fixing 28th June 1903, as the date on which if the arrears are not paid up, the estate can be sold.

Exactly the same view has been taken in a recent decision of the Privy Council, AIR 1931 57 (Privy Council) . It is therefore clear from the above decision that the jurisdiction of the Collector to sell the estate in arrear does not arise till the arrears1 remain unpaid on the latest day of payment fixed under the law for the payment of that arrear. Similar view has been expressed in the Calcutta decision Harhhu Singh v. Bansidhar Singh [1898] 25 Cal. 876. Their Lordships'' remarks are as follows:

It would follow that as the March kist did not become in arrear until 1st April, the property could not be sold in respect of it unless, default had continued until 28th June, which was the next fixed date after that instatment became an arrear.

In this case their Lordships held that a suit to set aside a sale purporting to be under Act 11 of 1859 on the ground that arrear of revenue was not due may be brought in the civil Court even if such ground has not been specified in an appeal to the Commissioner. The case of Govind Lal Boy v. Ramjanam Misser [1894] 21 Cal. 70 was cited from the Bar and it was contended that that decision of the Privy Council swept away the distinction between mere irregularity and illegality; but their Lordships held that when the estate was sold without there being an arrear the sale was ultra vires and the decision of the Privy Council in Govind Lal Boy v. Ramjanam Misser [1894] 21 Cal. 70 did not in any way modify that position. This takes me to the question of what was the latest day of the payment in these cases. Ordinarily 7th June and 28th September were the latest days of payment for the various sums of money mentioned in the tauzi ledger and indicated above. Admittedly the estates were not in arrear for the kist of 28th September as the amounts were received in the treasury on 26th September 1923.

The case of the respondent is that the estates have been sold for the kist of 7th June 1923 and which amounts were received on 9th June 1923, i.e. after the latest day and therefore the estates were in arrears. In ordinary cases one was bound to hold that the estates were in arrears after sunset of 7th June and liable to be sold for that arrear in spite of the fact that the money was received in the treasury on 9th June. But in this case for the reasons which I shall presently give I hold that for the kist of 7th June the latest day of payment became 28th September 1923. This necessitates the examination of Section 3 and Section 5, Revenue Sale Law, again. I have already said that Section 3 of the Act empowers the Board of Revenue to fix the latest day of payment for the arrears which had fallen due. Section 5, it has been held, is a proviso to Section 3. Now the proviso, that is, Section 5, provides that in cases mentioned in the section the estate shall not be sold unless a notice prescribed in that section is issued 15 clear days before the date fixed u/s 3 specifying the nature and amount of the arrears of demand and the "latest date" on which payment thereof shall be received. Section 5 uses the words "latest date" in respect of the date to be fixed by the Collector on which payment shall be received and then the words ''''the date fixed for payment according to Section 3 of this Act." These two cannot necessarily mean the one and the same date. They may be the same date and they may not be the same date.

It is obvious that a day to be fixed by the Collector on which payment of arrears shall be received is described as the latest date. The section makes a distinction between these two dates that is, a date fixed by the Board of Revenue and a date fixed by the Collector. I lay stress upon the words "and latest day on which payment thereof shall be received." Therefore in oases mentioned in Section 5 the Collector is required to fix a latest day on which the arrears shall be received. It is clear therefore that while u/s 3 the Board has been empowered to prescribe the latest date of payment for general application, in the cases specified in Section 5 the Collector has been required to fix a latest day of payment that is a special latest day for those cases. The provision of Section 5 was discussed very elaborately in the case of Jahnnovi Chowdhurani v. Secy. of State 7 C.W.N. 377. It was held that Section 5 was the proviso to Sections 2 and 3 of the Act and further that notice u/s 5 can only be issued after an arrear has been found due. In the case before us as the original kistbandi is not known one does not know when a particular amount became an arrear; what is known is that the latest day of payment for a certain amount was 7th June. It is therefore very doubtful whether the Collector could issue a notice u/s 5, 15 days before 7th June as is apparently the view of the learned District Judge. I think the Collector was right in not issuing the notice 15 days before 7th June but issued it 15 days before 28th September for both the kists because there is no question that all the amounts for which he issued notice had become an arrear on 1st September of that year.

In this case it appears that the estate was taken to be under attachment by order of the civil Court and the Collector therefore did issue a notice fixing 28th September 1923, as the latest day on which payment shall be received of the amounts of which the ordinary latest day was 7th June 1923, and 28th September 1923. I am clearly of opinion that when the Collector exercises his powers u/s 5 and fixes a later date for the receipt of the arrears the day fixed by him becomes the latest day of payment in supersession of the general latest dates of payment fixed by the Board of Revenue u/s 3. Section 3 and Section 5 should be read together. While the dates fixed by the Board of Revenue are the dates of general application, in special cases the Collector has been given the power of fixing another latest date of payment in the particular cases specified in Section 5. The Collector having done so in this particular case the latest date of payment became 28th September.

The learned advocate for the respondent contends as follows: His first contention is that this was not a case in which Section 5 had any application. He bases his agreement on two grounds: firstly, that the appointment of a receiver does not amount to an attachment by a civil Court and secondly, that on the day when the estate fell into arrears the receiver had already been removed and the properties were in possession of the plaintiff. Ordinarily it seems to me that when the Court appoints a receiver and thereby takes charge of the property and manages through an officer appointed by it the position becomes stronger than that of an ordinary attachment in execution of a decree and is an attachment by the civil Court. Be that as it may, I think it is not necessary to decide this point and it is too late now to allow the respondent to take up the position that it was not a case in which Section 5 had any application. Both the Courts have proceeded on the lines as if it was an admitted fact that the estate was one in which Section 5 applied. In the trial Court it was specifically held that it was so, and the learned District Judge also by implication had held in similar terms. The learned trial Court''s observations are these:

So the 8 annas Raj Srinagar was in possession of the Court...notice u/s 5, Act 11 of 1859 was required to be served.

And the learned District Judge observes:

But the notice u/s 5 which according to law should have been published 16 days before 7th June were not published till 13th August.

The respondent himself, who was an appellant before the lower appellate Court in his grounds of appeal took up the position that the notices u/s 5 had been properly issued and served. Similarly, the Collector also treated the estate as coming u/s 5 and issued notice under that section. In my opinion the respondent is not entitled to ask us to reopen the question whether or not it was a case where Section 5 applied. The next contention of the learned advocate for the respondent is that the non-issue of a notice u/s 5 is a pure irregularity which cannot be inquired into by the civil Court unless the ground is taken up before the Commissioner in appeal u/s 33 of the Revenue Sales Law. He relies upon the Privy Council decision in Govind Lal Boy v. Ramjanam Misser [1894] 21 Cal. 70.

That was a case u/s 17 of the Revenue Sale Law which prohibits sale of an estate under circumstances analogous to those mentioned in Section 5. Their Lordships held that a sale held in contravention of the prohibition of Section 17 of the Act is not ultra vires and not without jurisdiction, the sale utmost is an illegal sale and cannot be questioned unless the ground has been taken up in appeal to the Commissioner u/s 33 of the Act, and the learned advocate argues by analogy that non-observance of the provision of Section 5 of the Act will not make the sale ultra vires. In my judgment there is a distinction between Section 5 and Section 17 of the Act. Section 17 prohibits the sale in certain circumstances; Section 5 is made up of two parts: one prohibits the sale in certain circumstances unless certain formalities of a notice have been gone into, the second part at the same time calls upon the Collector to fix a latest day of payment. As long as the latest day is not fixed by the Collector the general date fixed by the Board remains in force. The Privy Council case cannot be universally applied: vide remarks of Mitra, J., in Ganesh Prasad v. Pandey Brij Behary [1905] Cri.L.J. 565. His Lordship while dealing with the Privy Council case in connation with the applicability of Section 8, Act 7 (B.C.) of 1868, which prescribes that after the grant of a sale certificate the irregularity etc., about notices cannot be inquired into, considered the cases of Bal Mokoond Lal v. Jirjudhun Roy [1883] 9 Cal. 271, Mobarack Lal v. Secy. of State [1885] 11 Cal. 200 and Harkhu Singh v. Bunsidhur Singh [1898] 25 Cal. 876 and observed:

We do not think that the authority of those cases has been shaken in so far as they have dealt with Section 8, Act 7 (B.C.) of 1868 by the decision of the Privy Council in Govind Lal Roy v. Ramjanam Misser[1894] 21 Cal. 70.

Be that as it may, it is unnecessary for me to discuss the question of the effect of non-issue of a notice u/s 5, as in this case. As a matter of fact a notice u/s 5 was issued fixing 28th September 1923, as the latest date of payment. Once a notice u/s 5 fixing 28th September 1923 as the latest day of payment was issued, it became the latest day of payment in those particular cases in supersession of the general latest day of payment fixed by the Board of Revenue u/s 3 of the Act. The learned District Judge is in error when he treats the notice issued for the June kist in August as no notice issued, and says that in this case no notice u/s 5 was issued as it ought to have been issued for the kist of 7th June. He seems to be of opinion that it is compulsory upon the Collector to issue a notice u/s 5 of the Act 15 days prior to the earliest kist day fixed by the Board and treats this sale as without notice, but it is not so. For instance "Clause first" of Section 5 contemplates arrears remaining unpaid for years together. What the section requires is that in the circumstances enumerated, if the Collector wants to proceed to sell he must issue a notice 15 clear days before the day fixed by the Board of Revenue, fixing a latest day on which arrears shall be received. He may not do so for kists after kists. I have already discussed this in detail when dealing with the decision of Jahnnovi Chowdhurani v. Secy. of State 7 C.W.N. 377.

It may be, as I have said, that if the Collector does not issue a notice his act may be illegal but perhaps it will not affect his jurisdiction. But when he proceeds u/s 5 and fixes a latest day of payment that day becomes the latest day of payment and if there is no arrear on the day so fixed the sale becomes ultra vires. It is obvious that in this particular case the Collector did not proceed u/s 5 for the June kist, before the June kist day, but he proceeded under that section for both June and September kists, The notices issued u/s 5 in this case Exs. E and E(1) show that it was so. It says that unless the arrears mentioned below are paid on or before the next latest day of payment, viz., 28th September 1923, the under mentioned estate...will be put up for sale...on 7th January 1924. The arrears mentioned are both the June and September kists. It then becomes necessary to examine whether or not there was arrear on 28th September, the latest day of payment fixed for the June kist by the Collector, and for the September kist both by the Collector and the Board of Revenue. There is no question that the September kist was received and paid on 26th September.

The only question to be discussed is about the payment of the June kist, which had already been received on 9th. June and was lying with the Collector, It has been held by the Privy Council in Mahomed Jan v. Ganga Bishun Singh [1911] 38 Cal. 537 that where the proprietor of an estate made a payment in respect of arrears of revenue and in the document which accompanied the payment to the Government, expressly appropriated it to the satisfaction of a particular kist, and the money was accepted and acknowledged by the treasury officer as paid on that account it was not in the power of one of the parties to the transaction, without the assent of the other to vary the effect of the transaction by altering the appropriation in which both originally concurred. In this case the money was expressly sent for the June kist, and was in the hands of the Collector and it cannot by any stretch of argument be said that the June kist remained unpaid on 28th September 1923. The observation of their Lordships in the case I have cited above refers to the arrear remaining unpaid on the day of sale as if the-power of the Collector to sell depends upon the arrear remaining unpaid on the day of sale, but it is not necessary to examine this matter any further. It is enough for the purposes of this case that there was no arrear on the latest day of payment. In the case of Dasharathi Ghosh Vs. Khondkar Abdul Hannan, . It was held that the question as to whether an estate is in arrears is not a mere matter of form but of substance--a legal position to be inferred from all the circumstances, rather than a fact to be determined by a mere reference to the entries in the Collector''s Register as relating to the particular estate. The faces of that case were similar to the facts of this case. There the revenue was sent through the post office and was received in the collectorate. It was not credited in the proper register as in the money order the number of the tauzi and the name of the thana were wrongly given. It was held that it was necessary to give the remitter an opportunity of making an application for the credit of the money for the revenue of the estate for which it was meant.

The sale of an estate for its arrears of revenue, the proprietor whereof had been deprived of a chance of correcting his mistakes by reason of the non-compliance of the aforesaid rules, is contrary to the provisions of the Act and must be annulled. There is no duty cast upon a remitter to be on the look out for the return of the acknowledgment or for any endorsement that may happen to be made therein. This case is much stronger than the one I have cited. Here there was no mistake, arrears were paid of course two days later than the latest day fixed by the Board of Revenue; but the latest day, as I have said was shifted to 28th September and the arrears of the June kist being already with the Collector he ought to have credited the amount to the arrears of land revenue. If he did not do so the plaintiff cannot be made to suffer. In this case, as I have said, the position is much stronger. The acknowledgment receipt of the money order is a complete acquaintance. Nothing is indicated on them to show that the Collector did not appropriate the money towards the revenue and kept it in the revenue deposit. It is on the coupon portion which is kept in the treasury that such note has been made. The acknowledgment was received by the plaintiff and no intimation was given to him that the money was not being utilized towards the land revenue and was kept in the revenue deposit.

The legal position therefore is that a debtor paid money towards the satisfaction of the debt, a receipt was granted by the creditor to show that it was credited towards that account but behind the back of the debtor the creditor did not utilize the money towards the satisfaction of the debt and kept it somewhere else in deposit, and on the date fixed for the payment of the debt u/s 5 of the Act the debt was taken as still unsatisfied. This position cannot be sustained for one moment and it cannot be said that because the money of the June kist was lying in the revenue deposit from 9th June and still, that kist remained unpaid on 28th September. Then again it is not clear for arrears of which kist the sale has been held. If it was held for the arrears of the September kist it was obviously ultra vires because the arrear of the September kist was undoubtedly paid on 26th September. It is said that the sale was as I have said for the June kist but the sale certificate issued to the purchaser says that the sale was to take effect from 28th September 1923. This sale certificate is issued u/s 28, Revenue Sales Act. Section 7 of the Act enjoins that notice shall be issued to the tenants not to pay rents due to the defaulting proprietor after the latest day of payment, that is, the title of the purchaser commences from the latest day of payment and the sale certificate obviously takes 28th September to be the latest day of payment. I have already held that the latest day of payment for the June kist was also 28th September. On that day there was no arrear, the June kist having been received on 9th June 1923 and the September kist on 26th September 1923. There being no arrears the sales were ultra vires.

I therefore agree with my learned brother that the appeals be allowed, the decree of the District Judge be set aside and those of the Munsif be restored. It be declared that the sales held on 7th January 1924, of the estates bearing Tauzi Nos. 2480 and 2480 1 of Monghyr Collectorate was without jurisdiction and null and void. The appellant will get his costs throughout.