Babu Chhakowri vs The Secretary of State for India and Others

Coutts, J.—This is a second appeal against the decision of the District Judge of Gaya, dismissing an appeal against decree of the Subordinate Judge. The facts are shortly as follows:

In a certain revenue-paying estate there were three separate accounts Nos. 33, 26 and 31 and also a residuary share. When the March kist of 1915 became due, account No. 33 was in arrear to the extent of Rs. 3-10-0 and the residuary share was in arrear to the extent of Rs. 6 8 6. There was an excess, however, in respect of separate account Nos. 26 and 31 of Rs. 1-15-0 and 5 2 0 respectively. Sometimes in the month of April 1915 the arrear of Rs. 3-10-0 in respect of separate account No. 33 was paid with the permission of the Collector and this separate account was exempted from sale on the 1st of May 1915. When this payment of Rs. 3 10 0 was made and taking into account the excess which was in deposit in respect of separate accounts Nos. 26 and 31, there was no arrear in respect of the whole estate. In spite of this, however, the proceedings for sale of the residuary share went on and, eventually, it was sold and purchased by the plaintiff in this suit, Chhakowri Singh. After the sale, the proprietors of the estate applied to the Commissioner for annulment of the sale and he, on the ground that, at the time of the sale, the general account was not in arrears, set aside the sale. The auction-purchaser then brought this suit for a declaration that the ijmali share was sold for its own arrears of Government revenue and that a good title passed by the purchase; and further, he asked for a declaration that the plaintiff was entitled to obtain a certificate of title from the Collector of Gaya.

The suit was dismissed in the Court of the Subordinate Judge; on appeal this decision was confirmed and the plaintiffs have now preferred this second appeal.

Two points are urged before us: (1) that there was, in fact, an arrear and (2) [that the Commissioner had no jurisdiction to set aside the sale

With regard to the first of these points, the argument an behalf of the appellant is that the crucial point of time for determining whether an estate is in arrears or not, is the kist day and that if payment is not made on that day the estate must be sold, unless there is an express order of exemption by the Collector. In this case the payment of Rs. 3-10-0 was made after sale proclamation in respect of the ijmali share had issued, there was no application for exemption of the ijmali share and no exemption was granted and, consequently, it is contended, even although the whole of the estate was not in arrears after the payment, the ijmali share not having been specially exempted, the estate was bound to be sold. I am unable to accept this contention. As soon as the Collector expressly exempted the separate account No. 33 from sale on payment of Rs. 3-10 0, this payment had the effect of clearing off the arrears in respect of the whole estate and, consequently, of the ijmali share. There was, therefore, in fact no arrear due on the whole estate and the ijmili share was no longer liable to be sold. For another reason also, the estate was not liable to sale. Although on the kist day there was a default, it did not, u/s 2 of Act XI of 1859, become an arrear of revenue until the 1st of the following month and, u/s 3 of the Act, the estate did not become liable to sale until the date fixed by the Board of Revenue. Now, the dates fixed by the Board of Revenue u/s 3 of the Act are 28th June, 28th September, 12th January and 28th March. The present case is one of default at the time of the March kist. u/s 2 of the Act, therefore, there was no arrear of revenue until the 1st of April.

This being so, the'' property did not become liable to sale until the next date fixed by the Board of Revenue u/s 3 of the Act. The next date is the 28th June. Consequently, the estate did not become liable to sale until that date and the sale by the Collector before that date was illegal. I am supported in this view by Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 : 13 Ind. Dec. 572 a decision which, so far as

I know, has never been dissented from. This brings us to the next question, whether the Commissioner had jurisdiction to annul the sale. u/s 25 of the Act, the Commissioner has power to annul a sale, "which shall appear to him not to have been conducted according to the provisions of the said Acts," i.e. Act II (B. C.) of 1868 and Act XI of 1859; and u/s 26 it is ''''competent to the Commissioner of Revenue on the ground of hardship or injustice to suspend the passing of final orders in any case of appeal from a sale and to represent the case to the Board of Revenue who, if they see cause, may recommend to the Local Government to annul the sale."

It is contended that the Commissioner can only act u/s 25 when there has been a mistake in procedure and that in all other oases he must act u/s 26 of the Act. I am not prepared to accept this argument, for it seems to me that the power given to the Commissioner u/s 25 goes beyond procedure, but it is unnecessary to discuss this because this is a case of error in procedure. What happened was, that the Mohurrir in charge of the register omitted to enter in the general account, as he should have done, that the payment of Rs. 3 100 had been made and the estate was consequently no longer in arrear. There can, therefore, be no question that the Commissioner had jurisdiction in this case.

In this view of the case the appeal must fail, but in any case it must have failed. The suit is one u/s 42 of the Specific Relief Act and relief in such a case is discretionary with the Court. The Court will not grant relief, unless there is substantial injury and in this case there is no substantial injury. The appeal, therefore, fails and I would dismiss it with costs.

Das, J.

I agree.