Banerjee, J.
1. Is there any conflict
2. The question, has not been referred to the Full Bench in a limited form.
Maclean, C.J.
3. There can be a Full Bench reference only when there is a conflict of judicial opinion on the point.
4. I submit that the whole question' has been referred to the Full Bench, i. e., whether a suit lies to set aside the sale.
5. Held by Maclean C.J. and Prinsep and Ameer Ali JJ. (Banerjee and Rampini JJ. dissenting) that it was not open to the learned pleader to argue his first point.
6. My second point is that the suit was barred by Section 312
7. [Babu Lalmohan Das, for the respondents: I contend that the second point also did not arise on the reference.]
8. [Maclean C. J. I think you must confine your argument to the question arising on Section 2 of Bengal Act VII of 1868. If we hold that section is no bar, you can argue the other points when the case goes back to the Division Bench.]
9. Then I submit that Section 2 of Bengal Act VII of 1868 does not apply to the present case. But, assuming that it applies, I submit; that it bars a regular suit. See Bishambhur Haldar v. Bonomali Haldar (1899) I. L. R. 26 Calc. 414. Compare the language of Section 2 with that of Section 33] of Act XI of 1859, in which latter section the decision is not declared to be final, and the right of regular suit is expressly given.
10. Babu Lalmohan Dan, Babu Karuna Sindhu Mukerjee and Babu Monindra Nath Bose, for the respondents.
11. Maclean C. J. The question submitted for our determination on this reference is whether a civil suit lies for setting aside a sale held in enforcement of a certificate issued under the Public Demands Recovery Act (VII B. C. of 1880) on the ground that the sale was vitiated 'by a material irregularity, leading to substantial injury, the irregularity complained of being that one property was advertised for sale and a different property sold; or whether the only remedy of the party whose property was sold lies in the appeal to the Commissioner under Section 2 of Act VII (B. C.) of 1868.
12. It has been contended before us that it is open to the appellant upon this reference to show, having regard to the language of this suit and the question submitted, that a suit will, not lie for reasons other than the possible application of Section 2 of Act VII of 1868: for instance that Sections 244 and 312 of the Code of Civil Procedure are a bar to the suit. I do not think that is so. It might have been so, if the first question had stood alone, but the alternative evidences what the real question is, and I read the reference as one merely upon the question of whether the view expressed by the learned Judges in the case of Troyluckho Nath Mozumdar v. Pahar Khan (1896) I. L. R. 23 Calc. 641, which followed a previous decision of a Division Bench of this Court, in the case of Sadhusaran Singh v. Punchdeo Lal (1886) I. L. R. 14 Calc. 1, which held 'that the only remedy of a judgment-debtor whose property has been sold in execution of a certificate issued under Act VII (B. C.) of 1880 and who Las sustained substantial injury by reason of a material irregularity in publishing or conducting the sale is by way of an appeal under Section 2 of Act VII 13: C. of 1868,' is or is not correct having regard to the case of Ramlogan Ojha v. Bhawani Ojha (1886) I. L. R. 14 Calc. 9, which is in favour of the opposite view. That is the only question upon which I propose to express1 ray opinion. The question of whether Section 244 or 312 of the Code is a bar to the suit has never been raised; there is nothing to show that that point has ever been the subject of conflicting decisions of Division Benches of this Court, and so a fit subject for a Full Bench reference. It would lead to much confusion and be contrary to Rule 1, Chapter V of the Appellate side rules, if we' were to go into such points as are now suggested upon the present reference.
13. We ought to confine ourselves to the precise and specific point of law submitted for our disposal. Nothing I am now saying will prevent the appellant from raising any other points before the Division Bench, See footnote, to which this case may he sent back for final disposal or prevent that Bench from deciding them.
14. Upon the question submitted to us being such as I have indicated, I am clearly of opinion that the decisions in the two first cases I have referred to are bad in law, for, whether Section 2 of Act VII (B. C.) of 1868 does or does not allow an appeal, there is nothing in that section which prevents the party whose property has been sold under the circumstances stated in the referring order, from bringing a suit in the Civil Court to set aside such sale. There may, of course, be other defences to such a suit, but I hold, unhesitatingly, that Section 2 of Act VII (B. C.) of 1868 is no bar in itself to a person who considers he is aggrieved by the sale, bringing a civil suit in a Civil Court to have that sale set aside.
15. I have virtually expressed the same view previously, though perhaps it was not necessary for the decision of that particular case, in the case of Chunder Kumar Mukerjee V. The Secretary of State for India (1900) I. L. R. 27 Calc. 693, 701, and I have heard nothing to-day which leads me to resile from that opinion. In point of fact the learned vakil who appeared for the appellant has not attempted to support j the point.
16. In my opinion the answer to the question referred to us is I that an appeal to the Commissioner under Section 2 of Act VIL (B. C.) of 1868 is not the only remedy opened to the party, whose property has been sold in enforcement of a certificate issued under the Public Demands Recovery Act (VII of 1880 B. C.), and that that section is no bar to his bringing a civil suit in a Civil Court to set aside the sale.
17. The costs of this reference will abide the results of the appeal.
Prinsep, J.
18. I am of the same opinion, As I understand the object of the learned Judges in making this reference, it was to obtain an expression of opinion whether in a suit such as this, Section 2 of Act VII (B. C.) of 1868 was a bar to its institution, and as expressing the affirmative of that question they refer to the case of Ramlogan Ojha v. Bhawani Ojha (1836) I. L. R. 14 Calc. 9. That, as I understand it, was the only point before us, and I agree with the answer which it is proposed to give.
Banerjee, J.
19. I agree with the learned Chief Justice in holding that Section 2 of Act VII (B. C.) of 1868 does not bar a civil suit for setting aside a sale in enforcement of a certificate issued under the Public Demands Recovery Act VII (B. C.) of 1880, on the ground that the sale was vitiated by a material irregularity leading to substantial injury, and that the case of Troyluckho Nath Mozumdar v. Puhar Khan (1896) I. L. R. 23 Calc. 641, in so far as it affirms that view and lays down that the only remedy of the party whose property has been sold, lies in an appeal to the Commissioner under Section 2 of the Bengal Council Act of 1868, was wrongly decided, But, as I was one of the Judges who made this reference, I feel bound to add that this answers only one part of the question, namely, the latter' alternative, and that the Other alternative question, namely, whether a civil suit lies for setting' aside a sale held in enforcement of a certificate issued under the Public Demands Recovery Act VII (B. C.) of 1880 on the ground that the sale was vitiated by a, material irregularity leading to substantial injury, the irregularity complied of being that one property was advertised for sale and a different property sold, remains unanswered.
20. At the argument, the learned vakil for the defendant appellant raised the question whether a civil suit, such as the one contemplated in the first alternative of the question referred to us, was not barred by Section 244 of the Code of Civil Procedure, But it was held by a majority of this Bench that it was not open to him, upon this reference, to raise that question. From that view I beg respectfully to dissent. I am of opinion that the reference, or at any rate the first part of the question stated in the order of reference, did raise that question; and the reason why the second alternative of the question referred to the Full Bench was worded in the manner in which it has been, is because the point is so put in one of the conflicting decisions which have led to this reference. The conflict in the decisions of this Court which has led to this reference is that between the case of Ramlogan Ojha v. Bhawani Ojha (1886) I. L. R. 14 Calc. 9, on the one hand, holding that a civil suit would lie in a case like the one described in the question, and the cases of Sadhusaran Singh v, Panchdeo Lal 1886) I L. R. 14 Calc. 1, and Troyluckho Nath Mozumdar v. Pahar Khan (1896) I. L. R. 23 Calc. 641, on the other, holding that a civil suit would not lie and that the only remedy of the party whose property has been sold is an appeal to the Commissioner. There is thus a conflict in the result; and therefore I and Mr. Justice Brett, who made the reference, thought that by reason of the conflict between these cases the question ought to be referred to a Full Bench. The conflict was in the conclusions arrived at in those cases, though not in the reasoning. But as the question, which was sought to be raised in this reference, has been held by a majority of the Full Bench not to be open to the appellant to raise, I will not express any opinion upon it now; and I simply express my concurrence in the answer which the learned Chief Justice has given to the reference so far as that answer goes, reserving my opinion upon that question.
Ameer Ali, J.
21. I agree with the answer the learned Chief Justice proposes to give to this reference. It appears to me that necessity for the reference arose from the fact that in Troyluckho Nath Mozumdar v. Pahar Khan (1896) I. L. R. 23 Calc. 641, which proceeded upon the ] earlier case of Sadhutaran Singh v. Panchdeo Lal (1886) I. L. R. Calc. 1, it was held that a civil suit was barred inasmuch as the plaintiffs had a remedy in the shape of an appeal to the Commissioner under Section 2 of Act VII (B. C.) of 1868. This view, however, was at variance with that taken in the case of Ramlogan Ojha v. Bhawani Ujha (1886) I. L. R. 14 Calc. 9. There was no conflict on any other point in those decisions. It was not held either in Troyluckho Nath Mozumdar or in Sadhusaran Singh that the suit was barred under any other provisions of the law. I therefore think, as I said before, that the necessity for the reference arose upon the ground which formed the ratio decidendi of the case of Troyluckho Nath Mozumdar, and accordingly in my opinion the answer proposed to fee given deals with the exact questions raised.
Rampini, J.
22. I concur with my brother Banerjee in thinking that by the referring order in this case two questions have been referred for the decision of the Full Bench, namely, first, whether a civil suit lies for setting aside a sale held in enforcement of a certificate issued under the Public Demands Recovery Act VII (B. C.) of 1880, on the ground that the sale was vitiated by a material irregularity leading to substantial injury; and, secondly, whether the only remedy of the party whose property has been sold lies in an appeal to the Commissioner under Section 2 of Act VII (B. C.) of 1868. Consequently, I do not think that we are fully answering the questions propounded to us when we only deal with the second of those questions. But I understand that when the case goes back to the referring Bench, the first question will be open for discussion; so that perhaps it is not very important whether we deal with it here or not.
23. I regret I am unable to agree with the opinion of the other Judges constituting this Bench as to the answer to be given to the second question propounded in the referring order. It seems to me that the only remedy of the party whose property has been sold does lie ill an appeal to the Commissioner tinder Section 2 of Act VII (B. C.) of 1868. I think I am bound to hold this on the authority of the cases cited in the referring order, namely, the case of Sadhusaran Singh v. Panchdeo Lal and the case of Troyluakho Nath Mozumdar v. Pahar Khan. The reasons given in these cases for this view are that in Section 2 of Act VII (B. C.) of 1880 it is provided that the two Acts XI of 1859 and Act VII (B. C.) of 1668, together with Act VII (B. C.) of 1880 itself, are to be read as one Act. By the provisions of Section 2 of Act VII (B.C.) of 1868, an appeal lies to the Commissioner by a person who is aggrieved, and who Wishes to complain of any irregularity in publishing Or conducting the sale, and by the final words of the section the order of the Commissioner in such an appeal is final. Nothing has been said before us to day which satisfies me that these reasons are incorrect. Indeed no attempt has been made to controvert this reasoning. I must therefore adhere to the conclusion arrived at in those cases.
24. Of course I must not be understood as implying that no suit will lie in a Civil Court to set aside a sale oil grounds other than that of irregularity in publishing or conducting a sale, such as fraud, absence of a good and valid certificate, non-service of notice under Section 10, Act VII (B.C.) of 1880, in such a way as to make it binding on the judgment-debtor, or other grounds of the like nature.