Henry Thoby Princep, J.

1. This is a suit brought by Darsanbati Koeri and herhusband, Jai Narain Singh, to obtain possession of a revenue-paying taluk whichhad been sold under a certificate issued under Bengal Act VII of 1880 andpurchased by the defendant, who, on his death, is represented by his legalrepresentatives.

2. It seems that the name of Jai Narain Singh was recordedon the Collectors register, but that on the 22nd November 1884 Darsanbatiobtained an order for registration of her name in the place of her husband aspurchaser from him. The certificate under Act VII of 1880 bears date the 10thDecember 1884, but notwithstanding the order for registration of Darsanbatisname proceedings were taken against Jai Narain, and not against Darsanbati.Darsanbati then applied to the Collector to set aside the sale, but herapplication was refused on the 4th June. She next applied for a review of thatorder, but this was also refused on the 24th of the same month. An appeal wasmade to the Commissioner, Mr. Barlow, who set aside the sale by an order of the23rd September 1885. This was followed by an application for review of the saidorder by the purchaser, which came before the Commissioner, Mr. Alexander, who,on 8th June 1886, set aside the order of his predecessor, Mr. Barlow, andrestored the Collectors order affirming the sale. The auction-purchaser hasaccordingly obtained possession, and the object of this suit is to set asidethe sale and the possession acquired under it.

3. The Sub-Judge considered that the only point for hisdecision was whether the order of Mr. Alexander gave a valid title to thedefendant as purchaser at the sale held by the Collector; and, finding that itwas a valid order, he dismissed the suit. In appeal the District Judge, Mr.Badcock, found that only two points were raised, first, that "as theplaintiffs have never taken any steps to get Mr. Alexanders order set aside,they cannot regard it as a nullity; and, second, that the order was legal,because every Judge has an inherent right to review, to correct, or reverse anyerror or defect." The District Judge found that Mr. Alexanders order wasillegal, but he agreed with the Sub-Judge on the first point, holding that,"when an incorrect order is passed, it should be set aside in a proper,way by the person prejudicially affected by it, and he is not entitled toignore the proper procedure and, at some future time, to come forward and claimthat the order should be treated as a nullity." The meaning of this is notclear; for neither the Sub-Judge nor the District Judge has stated what was theproper course for the plaintiffs to take or why the Civil Court had nojurisdiction in the matter if the order of Mr. Alexander was passed withoutjurisdiction so as to make it of no effect. Probably they meant to hold thatthe only remedy open to the plaintiffs was to apply to the Board of Revenue forthe exercise of the power of supervision and control conferred by Section 24,Bengal Act VII of 1880. But although the District Judge held that he could nottouch Mr. Alexanders order for the reasons stated, he remanded the suit on theobjection that Darsanbati was not properly before Mr. Alexander, because shehad never received any notice of that application.

4. On remand, the Sub-Judge found that it was not provedthat Darsanbati had received such notice. It would therefore seem that if theappeal had been tried out by Mr. Badcock, the plaintiffs would have succeeded.It seems hardly necessary to point out that Mr. Badcocks course of reasoningis unsound, for if the plaintiffs had no right to appeal to the Civil Court,because the order of the Commissioner, Mr. Alexander, could not be called intoquestion, except by a procedure not resorted to, the Civil Court could notconsider whether Mr. Alexander had properly tried the matter before him,because Darsanbati, the party concerned, had not received notice of thatproceeding.

5. Mr. Badcock, however, had vacated office, and the appealwas tried by another District Judge, Mr. Holmwood, who apparently tried it onits merits and without regard to the findings of Mr. Badcock. Mr. Holmwoodfound that the order of the Commissioner, Mr. Alexander, was illegal, becausehe had no power to review the order previously passed by his predecessor inoffice, the law not giving a review of judgment in such cases.

6. In second appeal, it is contended that Mr. Holmwood hadno power to try the appeal, except on the point on which it had been remandedby his predecessor, and that his order is bad, because it reconsidered and setaside the findings of Mr. Badcock.

7. But, as has been already pointed out, it would be impossibleto maintain Mr. Badcocks order by following the course of reasoning taken byhim. Moreover, we should not be justified on the grounds pressed on us on thissecond appeal to remand the case to the District Judge for trial on the issuefixed by Mr. Badcock, so as to leave it open hereafter to the plaintiff, ifdissatisfied with the order so passed, to raise before us on another appeal-anappeal preferred by him-the correctness of the findings of Mr. Badcock inconcurrence with the Sub-Judge on the effect of Mr. Alexanders order. It seemsto us that our duty is, if possible, in this appeal to endeavour to terminatethis litigation rather than, by a rigid adherence to what probably may be theletter of the law in regard to the power of the Lower Appellate Court, asexercised by Mr. Holmwood, to prolong these proceedings and the postponement ofthe ultimate decision of the real point in issue, viz., the legal effect of Mr.Alexanders order.

8. It seems to us rather that, on the hearing of thisappeal, the entire case, including the order of remand passed by Mr. Badcock,is open to consideration; and we have the power to determine whether that orderor the order subsequently passed by Mr. Holmwood is correct on the merits.

9. There can be little doubt also that Mr. Holmwood foundhimself embarrassed by the form in which the appeal was presented to him, andendeavoured to deal with it in a complete manner, so as to settle the case oncefor all by having the entire case re-argued. He points out that, if under Mr.Badcocks view of the law, Mr. Alexanders order was illegal, all proceedingstaken by Mr. Alexander were without jurisdiction, and a nullity, and he quotesauthority for this. It is unnecessary to discuss how far the course taken byMr. Holm wood was strictly correct, for we have no doubt that it is our duty todetermine the point in issue, the effect of Mr. Alexanders order, on which heand Mr. Badcock have expressed different opinions.

10. It therefore becomes necessary for us to determine whether,as contended by the appellants, plaintiffs, the order of the Commissioner, Mr.Alexander, was ultra vires, as he had no authority to review his predecessorsorder, and, if so, whether the purchaser has any right or title to the propertyin suit. But it is objected on behalf of the defendants, appellants, that, evenif there be no right of review, there was no appeal to the Commissioner, andthat consequently the order of the Collector affirming the sale is the onlyvalid order, and this suit should be dismissed.

11. Now, as regards the right of appeal, it is sufficient todraw attention to the case of Sadhu Saran Singh v. Panchdeo Lal I.L.R. Cal. l,in which it was held that the law allows an appeal against such an order of theCollector. We observe that the same point was raised in the case of Ram LoganOjha v. Bhawani Ojha I.L.R. Cal. 9, but it was not decided, though it wouldseem from the judgment that some doubt in regard to the law expressed by thefirst decision was entertained by the learned Judges. After full considerationof the arguments in this appeal, we agree in the opinion expressed by MITTER,J., in the case first mentioned. We have no doubt that the first order passedby Mr. Barlow on the 23rd September 1885 is good in law. The heading of hisjudgment seems to indicate that it was on an appeal against the order of theCollector of Bhagulpur, not in affirming the sale, but in rejecting the reviewto reconsider the order affirming the sale. The object of the appellant,however, was no doubt to remove the effect of both those orders, that is, toset aside the sale and so to get herself restored as proprietor of the propertywhich had been sold; and the body of the judgment shows that the appeal wasreally directed against the order affirming the sale. We attach no importanceto the heading of the order, which seems to have been a misdescription, or, itmay be, an imperfect description, of the matter brought before theCommissioner, which was intended to be an appeal and was so tried. There is,therefore, no valid objection to our dealing with the point really in issue,that is, whether the order of Mr. Barlow was open to review.

12. I cannot admit that such a power is inherent in everyJudicial or Revenue Officer. It is a power expressly given by law to JudicialOfficers under certain conditions, and therefore it cannot be assumed that whennot so given it is inherent in every officer. If this had been so, there neednot have been any legislation on the subject. We cannot hold that all this legislationwas unnecessary. But in respect of the matters now before us, we find thatthose portions of the Code of Civil Procedure which confer the power to reviewa judgment and regulate the exercise of such powers, have not been extended toproceedings under the Bengal Acts of 1868 and 1880; Section 19 of the Act of1880 declares that certain portions of the Code of Civil Procedure shall beapplicable to proceedings taken in regard to certificates, but we find that theportion of the Code which refers to reviews of judgment forms no part of thelaw set out in that section. The sections of the Code of Civil Procedurerelating to appeals are also omitted, but the reason for this omission isclear. The right of appeal is conferred by Bengal Act VII of 1868, Section 2,and this, as it was held in the case of Sadhu Saran Singh v. Panchdeo LalI.L.R. Cal. 1, in which we concur, was held to be applicable to proceedingsunder the Act of 1880 by reason of Section 2 of that Act. There is no provisionmade for an application for review of a judgment passed on appeal by aCommissioner under the powers conferred by Section 2 of Bengal Act VII of 1868.The Acts of 1868 or 1880 are both of them silent in this respect. We find,rather, that the law has provided other means for correcting an order passed bythe Commissioner on appeal, for Section 24 of the Act of 1880 has conferred onthe Board of Revenue the power of general supervision and control overproceedings of Commissioners under that Act, so that any person who may bedissatisfied with an order passed by a Commissioner on appeal has thus hisremedy by bringing it under consideration of the Board of Revenue. By notproviding for a review of such an order, either expressly or by extending tosuch orders the Code of Civil Procedure relating to reviews of judgment, and bygiving to a superior authority, the Board of Revenue, the power to superviseand control any order passed by a Commissioner, the Legislature has, in myopinion, declared an intention that such an order shall not be open to review,but is open to revision by the Board of Revenue with the same result.

13. For these reasons I am of opinion that the order of Mr.Alexander affirming the sale was ultra vires and is of no effect, and that,under the order passed by Mr. Barlow on the 23rd September 1885, which declaredthe sale to be set aside, the purchaser has no valid title.

14. For these reasons the appeal is dismissed with costs.

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Jai Narayan Singh and Ors. vs. Pryag Lal and Ors.(08.02.1895 - CALHC)