1907 (5) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the Commissioner's order dated 21st June 1900.
2. Validity of the sale of the mehal for arrears of revenue.
3. Service of notice of sale.
4. Adequacy of the sale price.
5. Amendment of the plaint and addition of co-plaintiffs.

Issue-wise Detailed Analysis:

1. Legality of the Commissioner's Order Dated 21st June 1900:
The primary issue revolves around whether the Commissioner had the authority to review and set aside his previous order dated 23rd March 1900, which annulled a sale for arrears of Government revenue. The Subordinate Judge held that the Commissioner could not review and set aside his order of the 23rd March, rendering the order of that date valid. The judgment emphasizes that the Commissioner admitted on 31st July 1900 that his order of 21st June was illegal and that he had no power to review an order once legally passed under the provisions of the Sale Law, Act XI of 1859. The Board of Revenue concurred with this view on 5th September 1900. The court further noted that there is no express provision in Act XI of 1859 allowing a Commissioner or any Revenue Authority to review or set aside an order once legally passed under the Act.

2. Validity of the Sale of the Mehal for Arrears of Revenue:
The sale of the mehal was conducted by the Collector of Monghyr on 2nd January 1900 for arrears of revenue. The plaintiff and certain co-sharers appealed against the sale. The minor plaintiff's appeal was dismissed due to the non-inclusion of the auction-purchaser as a party. However, the co-sharers' appeal was successful, and the sale was set aside on 23rd March 1900. The Commissioner later reviewed and affirmed the sale on 21st June 1900, which was contested as being ultra vires. The court concluded that the subsequent order affirming the sale was ultra vires and of no effect, thus the sale was rightly or wrongly set aside by the Commissioner.

3. Service of Notice of Sale:
The Subordinate Judge found no proof of the service of the notice of sale, which was contested by the defendants. The judgment acknowledged that while the Subordinate Judge held there was no evidence of service, it was noted that the chowkidars who denied the service were not truthful. The appellant had obtained a certificate of sale, which under Section 8, Act VII of 1868, bars any contention regarding the non-service of the notice. The court ultimately found sufficient evidence of the service of notices.

4. Adequacy of the Sale Price:
The Subordinate Judge held that the property was sold for an inadequate price but found no direct evidence connecting the inadequacy of the price with the non-service of the notice of sale. The judgment noted that whether the price was adequate or not, the Subordinate Judge himself found no direct evidence to link the inadequacy of the price with the non-service of the notices.

5. Amendment of the Plaint and Addition of Co-plaintiffs:
The defendants contended that the Subordinate Judge should not have allowed the plaint to be amended and some of the defendants to become co-plaintiffs after the remand by the Court. The judgment supported the Subordinate Judge's decision, stating there was no reason why the plaint should not have been amended and the defendant co-sharers allowed to join the plaintiff in the suit. It was noted that their suit was not barred by limitation, and the Subordinate Judge only allowed them mesne profits from the date of the decree.

Conclusion:
The appeal was dismissed with costs, affirming that the Commissioner had no authority to review his previous order of 23rd March 1900. The sale was set aside by the Commissioner, and his subsequent order affirming the sale was ultra vires and of no effect. The service of notices was deemed sufficient, and the amendment of the plaint was justified. The respondent's cross appeal was dismissed as it was not pressed.