Francis W Maclean, K C I E C J -
(1.) I think, though with some little doubt, that there must be a remand in this case to the Lower Appellate Court, for that Court either to take the evidence itself, or send the case to the first Court to do so, for the determination of the question whether the Collector issued to the judgment-debtor a copy of the certificate upon which the sale was based and notice in Form IV in the Second Schedule annexed to Act VII (B.C.) of 1880, in other words, to ascertain and determine whether the provisions of Section 10 of the Act were strictly and properly complied with. I direct this remand, because in my opinion the finding of the Court below is not quite so explicit as it ought to be, though I should rather infer from his language that it was the Judge's intention to find that the notice had not been duly served in accordance with the provisions of Section 10. If the Court should find that the provisions of Section 10 have not been complied with, then in my opinion the sale cannot stand, and I feel no difficulty in holding that the Civil Court has jurisdiction to entertain a suit to set aside the sale.
(2.) It was contended that there is no jurisdiction in the Civil Court to entertain a regular suit to set aside the sale, having regard to the provisions of Section 2 of Act VII (B.C.) of 1868, But that section only enables the Commissioner of Revenue to "receive an appeal": it does not make it compulsory upon the judgment-debtor, who complains of the sale, to appeal to that tribunal, nor does it deprive him of his right to institute a regular suit to set aside the sale. If the case of Troyluckho Nath V/s. Pahar Khan (1896) I.L.R., 23 Cal., 641, decide the contrary, I respectfully differ from its conclusion, which appears to me to be inconsistent with the cases to which I am about to refer.
(3.) I am unable to accept the contention of the learned Senior Government Pleader for the Secretary of State, that a sale cannot be set aside until the certificate has been set aside, and that a certificate can only be set aside on some or one of the grounds stated in the Sub- section (b) of Section 8 of Act VII (B.C.) of 1880. That view appears to me to be inconsistent with the decision of the Privy Council in the case of Baij Nath Sahai V/s. Ramgut Singh (1896) I.L.R., 23 Cal., 775, with that in the case of Mahomed Abdul Hai V/s. Gujraj Sahai (1893) I.L.R., 20 Cal., 826, and with the decision to which I was myself a party in the case of Saroda Charan V/s. Kista Mohun (1897) 1 C.W.N., 516. The case of Baijnath Sahai V/s. Ramgut Singh (1896) I.L.R., 23 Cal., 775, indicates how important it is in cases of this class that the requisites preliminary to a sale should be strictly complied with. In neither of the Privy Council cases, to which I have referred, was it suggested that a regular suit would not lie to set aside the sale, or that the judgment-debtor's only remedy was an appeal under Section 2 of Act VII (B.C.) of 1868. As regards the argument under Section 8 of Act VII (B.C.) of 1880, the plaintiff's case is that it is the sale and not the certificate he wants to have set aside, and he claims to have it set aside, on the ground that the provisions of Section 10 were not complied with, and that, until he was served with the notice under that section, the certificate did not bind his immoveable property, and that, as he was never served with such notice, his immoveable property never became bound by the certificate, and in this view he says it is immaterial to him whether or not the certificate is set aside, so long as the sale is. I do not think there is anything in Section 8 which prevents his instituting this suit. I may add that Section 8, which only refers to a suit to contest his liability to pay the amount stated in the certificate and to have the certificate cancelled, pre-supposes service under Section 10. I am unable, therefore, to accept the view of the law as laid down by the Lower Appellate Court, but, as the Secretary of State asks for it, there will be a remand on the point I have mentioned. The respondents, however, must pay the costs of this appeal. Banerjee, J.;