Decided on July 05,1901

DILWAR ALI Appellant


Banerjee and Brett, JJ - (1.) This appeal arises cut of a suit brought by the plaintiffs respondents to set aside a side under the Public Demands Recovery Act (VII of 1880 B. C.) and to recover possession of a, certain share of the property sold, upon establishment of the plaintiffs right to the same. The main allegations upon which the suit is based are, that mourn Bagh Kalapahar bearing No. 1381 on the tonji or register of the Burdwan Collectorate belonged to the plaintiffs and the defendants Nos. 2 to 9, the share of the plaintiffs being 8 annas 3 gnadas kara 1 kranti; that the Collector of the District filed a certificate naming Uie plaintiffs and some of their co-sharers as debtors, and stating, that a certain sum of money was duo from them as road cess on account of wehal No. 1381 which was erroneously named as mouza Kothalgachi; that the sale proclamation which contained the same erroneous statement was published in mouza Kathalgachi and not in mouza, Bagh Kalupahar, and owing to this want of due publication, Bagh Kalapahar, which was worth Rs. 25,000, was sold only for Rs. 165 and that the sale was fraudulently brought about by defendants 3 and 4 who bought the property in the name of defendant No. 1 and thou made him execute a release in the name of their relative defendant No. 2.
(2.) The defendant No. 2 in his written statement claimed to be the real purchaser at the sale in question, denied the plaintiffs allegations about the non-service of the sale proclamation and the value of the property sold; and urged that the sale was valid. Defendants No. 3 and 4 denied the allegation of fraud and disclaimed all connection with the sale and purchase. Defendant No. 8, who was one of the debtors named in the certificate, supported the plaintiffs. And the Secretary of Slate for India, who was made a defendant, admitted that the sale was bad for want of due publication of the Bale proclamation.
(3.) The first Court found that the allegation of fraud was not proved, that defendant No. 2 was the real purchaser at the auction sale, that the sale proclamation was published in Kathalgachi and not in Bagh Kalupahar, and that the property was sold in consequence at an inadequate price; and following the case of Ramlogan Ojha V/s. Bhawani Ojha (1388) I. L. R. 14 Calc. 9, it set aside the sale and gave the plaintiffs a decree for possession of the share claimed. Against that decree defendant No. 2 has preferred this appeal. The appeal was heard by Mr. Justice Rampini and Mr. Justice Pratt, and as those learned Judges differed in opinion upon the question whether the suit was maintainable, the case has been referred to us under Section 575 of the Civil P. C.. At the first hearing before us, it appearing that there was a conflict of decisions in this Court upon one of the questions that arose in the case, namely, the question whether a civil suit lies for setting aside a sale held in enforcement of a certificate under Act VII of 1880, B. C., on the ground of the sale being vitiated by material irregularity leading to injury or whether the only remedy of the debtor lay in an appeal to the Commissioner under Section 2 of Act VII of 1868, B. C., we referred that question to a Full Bench for determination. A majority of the Full Bench having answered the question in the manner following, namely, that Section 2 of Act VII of 1868 B. C., is no bar to a civil suit, the case now courts back to us for determination.;

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