Sundaram Iyengar vs Ramaswami Iyengar and Another

In this case a revenue sale was held, in which 1st defendant''s land was sold under Revenue Recovery Act (Act II of 1864). A petition u/s 37 A

of that Act to set aside the sale was dismissed and also a petition u/s 38(1) of Act II of 1864. These two orders were passed by the Deputy

Collector, and his order of confirmation of sale was approved by the District Collector under the powers conferred on him by Section 3 of the

Madras Regulation VII of 1828. By this confirmation the order of confirmation u/s 38(3) of Act II of 1864 became final. Later on however, the

Board of Revenue directed the Collector to cancel the sale and he cancelled it accordingly. Plaintiff''s suit, to set aside this last order and to

recover possession of the property purchased by him at the revenue sale has been decreed by the Subordinate Judge. The first objection taken is

that under Madras Regulations I and II of 1803 which gave the Board of Revenue power of general superintendence over Collectors, the Board

had the power to set aside the sale. When a certain power is given to the Collector by Statute, it is not open to the authority having only general

powers of revision over him to direct him to pass a special order contrary to what he had already done. In this case the order cancelling the sale

though purporting to be passed by, the Collector was really the order of the Board of Revenue who had no such power under Act II of 1864. We

have not been referred to any authority in support of this contention and we cannot accept it.

It is next argued that as the District Collector has powers of revision over Assistant Collectors exercising the powers of a Collector, under

Madras Regulation VII of 1828, he had u/s 38(3) of Act II of 1864 power to pass the final order cancelling the sale. The order u/s 38(3) of Act II

of 1864 was, however, passed in this case by the Deputy Collector, and when his order was confirmed by the District Collector it became a final

order passed by the Collector within the meaning of Section 88(3) and neither he nor the District Collector had himself power under the Act to

pass any further order. We cannot accept a further contention that the proviso clause of Section 38 gives power to set aside a sale after it has been

confirmed under the first part of the section. The power given under that clause is one that must be exercised in lieu of the confirmation of the sale.

The third point is that this suit is barred by limitation u/s 59 of Act II of 1864, as it has not been brought within six months of the order

complained against. The order setting aside the sale was in effect a review of the previous order confirming the sale and therefore following David

Nadar v. Manikka Vachaka Desika Gnana Sambanda Pandara Sannadhi ILR (1909) Mad. 65. we think that Section 59 is inapplicable, for it was

an order passed wholly without jurisdiction, and not under any power conferred by the Act. In this view Venkata v. Ghengadu, etc. ILR (1888)

Mad. 168 and Raman Naidu v. Bhassoori Sanyasi ILR (1903) Mad. 633 and Iswara Pattar v. Karuppan (1893) 8 M.L.J. 255 can be

distinguished.

The last argument is that on the merits the sale should have been set aside. The finding of the Subordinate Judge that no substantial injury was

proved to be due to the only irregularity in the conduct of the sale, concludes this point.

The second appeal is accordingly dismissed with costs of the 1st respondent. The memorandum of objections is dismissed.