This appeal arises out of a suit brought by the Plaintiffs-Appellants for a declaration that they were persons entitled to make a deposit under sec. 19 of the Public Demands Recovery Act, I of 1895 (Bengal Council), and that the order of the Deputy Collector made upon review under that section confirming the sale and the order of the Commissioner under sec. 33 of that Act confirming the sale, were ultra vires, and for cancellation of the sale. The defence was that the suit was not maintainable, that the orders complained of were not ultra vires, and that the sale should not be cancelled. The first Court decreed the Plaintiffs' suit. On appeal the lower Appellate Court reversed that decree and dismissed the suit on two grounds, first, that the suit to set aside the sale in execution of a certificate is not maintainable, where, as in this case, it is found that there was an unsatisfied arrear of cesses due at the time of the sale, and, secondly, that the orders under sec. 19 and sec. 33, which the Plaintiffs asked the Court to hold as being ultra vires, were really, not so.
In second appeal it is contended on behalf of the Plaintiffs-Appellants, that the first ground of the lower Appellate Court's judgment is wrong, and the case of Troyluckho Nath Mozumdar v. Pahar Khan in reliance upon which the lower Appellate Court has held this suit as not maintainable, has been overruled by the Full Bench decision of this Court in the case of Ram Tarak Hazra v. Dilwar Ali(2) and that the second ground of the judgment is also erroneous, it being argued that the order made by the certificate officer to set aside the sale under sec. 19 of Act I of 1895, was a final order under sub-sec. 4 of that section, and was neither open to review by the certificate officer nor subject to revision by the Commissioner under sec. 33, and that the subsequent orders interfering with that first order was ultra vires and should be treated as a nullity and if that is so, the first order setting aside the sale should be held to be the only order in the case, and the sale should be declared by the Court as cancelled. The contention on behalf of the Appellants that the first ground of the lower Appellate Court's judgment is erroneous, is, in our opinion, correct. The case of Troyluckho Nath Mozumdar v. Pahar Khan in reliance upon which the lower Appellate Court has held this suit as not maintainable, has been overruled by the Full Bench decision in the case of Ram Tarak Hazra v. Dilwar Ali.
It has been argued for the Respondent that sec. 15 of Act I of 1895 was a bar to the civil suit unless it is brought under certain conditions which have not been fulfilled in this case. We do not think that sec. 15 has any bearing upon this suit. If the contention of the learned vakil for the Appellants, that the first order of the certificate officer under sec. 19, setting aside the sale, was absolutely final in the sense not only of its not being open to appeal, but of its not being open either to review or revision by the Commissioner under sec. 33 of the Act, be correct, then all the subsequent orders would be ultra vires and the suit would lie and would not be liable to be dismissed. Was that order really so? That is the question upon which the whole case turns. The contention on behalf of the Appellants is that, as sub-sec. 4 of sec. 19 says, any order made by the certificate officer under this section shall be final, and as there is nothing to indicate that the finality intended by the section is finality so far as regards interference by an Appellate Court is concerned, we should hold that the intention of the Legislature was to make it final in the sense of not being open to appeal or review or revision. It was suggested that as the order contemplated by the section, was of a remedial character, restoring the property sold to its former owner and compensating the auction-purchaser by awarding him one-tenth of the auction price in addition to the purchase-money the Legislature might well have intended to make the order absolutely final.
On the other hand it is contended for the Respondent that the finality intended by sub-sec. 4 of sec. 19 is only finality so far as interference by an Appellate Court is concerned; that would not prevent the certificate officer from reviewing the order; nor would it prevent the Commissioner under sec. 33 of the Act from revising it; and it was pointed out that although sec. 19, sub-sec. 2 directs the certificate officer to set aside the sale on certain conditions, there is nothing to prevent the certificate officer from making an order under the section refusing to cancel the sale as he has done in this case, if not in the first instance, but upon review, and that in such cases, the reason given for making the order absolutely final cannot hold good.
After considering the arguments on both sides and the authorities cited, we are of opinion that sub-sec. 4 of sec. 19 of the Public Demands Recovery Act, I of 1895, in saying that any order made by the certificate officer under the section shall be final, only means and intends that it shall not be open to appeal such as is provided by sec. 32; and that the intention is not to make the order absolutely final so as to make it not open to review or revision. Although in most cases the order contemplated by sec. 19 can only have a remedial effect, there may be cases where a certificate officer erroneously refuses after the deposit to cancel a sale where he ought clearly not to do so; and to hold that there is no power which can set him right by revision, would be to hold what the Legislature could never have contemplated, especially when sec. 33 of the Act after providing that no appeal shall lie from certain orders, says that the Commissioner may in any case in which he thinks fit revise any order passed by a certificate officer or certain other revenue officers. The view we take that the words “shall be final” in sec. 19, sub-sec. 4 have the qualified meaning indicated above and not the unqualified signification for which the learned vakil for the Appellants contends, is in accordance with that taken in the case of Nosiruddin Khan v. Indra Narayan Chowdry(3) which had reference to exactly the same words occurring in the Civil Procedure Code of 1859, with regard to an order made upon an application for review of judgment. And the same view has in effect been taken by the Bombay High Court, in the case of Badaricharya v. Ram Chandra(4) and Ram Singh v. Kisan Singh(5). That being so, and the order in question being in our opinion open to revision by the Commissioner under sec. 33 of the Public Demands Recovery Act, and the Commissioner having under that section affirmed the sale, it becomes unnecessary to consider the further question whether it was open to a certificate officer himself to review the order when no power of review is conferred on him by the act a question upon which the case of Lala Peary Lal v. Joy Narain Singh may lend some support to the Appellants' contention.
The result is that the appeal fails and must be dismissed with costs.
S.C.S
Appeal dismissed.