JUDGMENT 1. The suit out of which this appeal arises was brought by the Plaintiffs to set aside the sale under Act XI of 1859 of certain shares of Mehal Panapore in which they were interested. The sale took place on 13th December 1897. The Subordinate Judge has given the Plaintiff a decree. He has held (1) that the sale was brought about by fraud and was therefore void and (2) that there were illegalities in connection with the sale, which vitiated it. These illegalities are (a) that in the notice issued under secs. 6 and 13 of Act XI of 1859 the names of the proprietors of the shares about to be sold were wrongly described. (b) that this notice did not comply with the provisions of sec. 13 of the Act and (c) that it was necessary to issue a notice under sec. 5 of the Act, and that as no such notice was issued the sale was illegal and of no effect. 2. The Defendants appeal and impugn the correctness of these conclusions of the Subordinate Judge. 3. Now, first, as to the alleged fraud. It is averred that the principal Defendant Deo Nandan told the Plaintiff Agin Singh about two days before the sale that he would pay up the arrears, which amounted to Rs. 145, for which the shares of the estate in question were about to be sold, that he induced Agin Singh to believe this, that he never intended to pay up the arrears which is shown by the fact that he never paid up the arrears, though the Collector agreed to receive them, and that he bought the share himself for Rs. 800 though he had brought about Rs. 7,000 or Rs. 8,000 to pay up the earnest money on his purchase. On the other hand, the Appellants point out that the Plaintiff Agin Singh was present at the sale, and must therefore have known that the arrears had not been paid, and so by paying them himself, might have prevented the sale from taking place. 4. We are of opinion that the fraud committed by the Defendant Deo Nandan, if any, was not such as to render the sale void. It was not such a fraud as brought about the sale. 4. We are of opinion that the fraud committed by the Defendant Deo Nandan, if any, was not such as to render the sale void. It was not such a fraud as brought about the sale. The sale would have taken place, whether the Defendant Deo Nandan had had any communication with the Plaintiff Agin Singh or not. The Plaintiffs may have a good claim against the Defendant Deo Nandan for damages for breach of contract, or for a reconveyance in his favour of the Plaintiffs' share in the estate purchased by him, but they can have no right to have the sale set aside as having been brought about by fraud. In this view, we are fortified by the decision of this Court in Amirunnessa Khatoon v. Secretary of State I. L. R. 10 Cal. 63 (1883). 5. It has been urged before us by Mr. Sinha for the Respondents that we should give the Plaintiffs in this suit the equitable relief to which they would seem to be entitled, as was done in the case of Bhooban Chundra Sen v. Ram Soondar Surma I. L. R. 3 Cal. 300 (1877) but we are unable to do so, because many of the Defendants in this suit are innocent and bonafide purchasers who were no parties to the fraud, and against whom the Plaintiffs have no right to equitable relief. 6. In respect of the illegalities held by the Subordinate Judge to vitiate the sale, they appear to us to be mere irregularities. 7. The fact that in the notice under sees, 6 and 13 there was entered the name of a deceased proprietor Bikoo Singh, who was not the proprietor of the separated share about to be sold, would seem to be immaterial, for the reasons given in the case of Ram Narain Koer v. Mohabir Prosad Singh I. L. R. 13 Cal. 208 (1886), According to the law it is not necessary to enter in a notice under sec. 6 the names of any proprietors at all. The entry of Bikoo Singh's name in the notice was therefore superfluous. To enter wrongly in such a notice that which it is, superfluous to enter in it cannot be an illegality, which readers the sale an entire nullity. 8. The Subordinate Judge finds that the provisions of sec. 6 the names of any proprietors at all. The entry of Bikoo Singh's name in the notice was therefore superfluous. To enter wrongly in such a notice that which it is, superfluous to enter in it cannot be an illegality, which readers the sale an entire nullity. 8. The Subordinate Judge finds that the provisions of sec. 13 were not complied with in this notice, because there is no mention in it of the separate account shares which are excluded. But the details of the shares about to be sold are fully given in the notice and it is explained in a note at the foot of the notice that "when in cols 5, 7 and 9, there is an entry that only a share is to be sold, then it ought to be understood that there is a separate account in respect of such a share and that other share and shares of the Mehal will be exempted from sale." Now, in the notice issued for the sale on the 13th December 1897 of the shares of the estate of Mehal Panapore, there are entries in cols. 5, 7 and 9; so that it should have been understood that there were separate accounts in respect of the other shares and that they were not to be sold. We accordingly consider that the provisions of sec. 13 of the Act were sufficiently complied with. 9. There remains the contention that no notice under sec. 5 of the Act was issued, and that in this case it was necessary to issue such a notice and its non-issue vitiates the sale. 10. It would seem to us, however, that the issue of a notice under sec. 5 was not required. Such a notice is only necessary when the sale is to take place for arrears other than those of the current year or of the year immediately preceding. The sale took place in December 1897 for arrears of the June and March kists of 1897. The demand for the June kist was Rs. 94-13-1 and for the March kist, Rs. 118-8-8. The arrears for which the property was sold amounted to Rs. 145. It should, therefore, appear that the arrears must have been due partly for the June kist and partly for the March kist, payments having satisfied the arrears of all previous kists. The demand for the June kist was Rs. 94-13-1 and for the March kist, Rs. 118-8-8. The arrears for which the property was sold amounted to Rs. 145. It should, therefore, appear that the arrears must have been due partly for the June kist and partly for the March kist, payments having satisfied the arrears of all previous kists. But the Plaintiffs contend that the Collector's books show that he was in the habit of crediting payments first to current and then to arrear demands, and the Subordinate Judge makes out that adopting this system of apportionment, part of the sum of Rs. 145 was due for arrears of 1895-96. But it would seem to us that the Collector was not bound to apportion the payments in this manner. In making up the account of the arrears before the sale he must have added the payments together, deducted their total amount from the sum of the total demands, and finding that the arrears did not exceed the demands for the kists of March and June, as in fact was the case, issued no notice under sec. 5 because in the circumstances no notice was necessary under the law. He would seem to us to have been entitled to do so. 11. However this may be, it cannot, we think, be held that the issue of a notice under sec. 5 was a condition precedent to the sale taking place, the non-compliance with which makes the sale no sale, as in case of its being found that there were no arrears for which a sale could legally be held ; see Bal Kishen Das v. Simpson L. R. 25 L. A. 151 (1898). The non-issue of such a notice would seem to be an irregularity. The opinion to the contrary effect expressed in Mohabeer Pershad v. Collector of Tirhoot 15 W. R. 137 (1871) is an obiter dictum, and would seem to be at variance with the views of their Lordships of the Privy Council, as expressed in Rajah Gobinda Lal Roy v. Ram Janam Misser L. R. 20 L. A. 165 (1893). Moreover, the non-issue of a notice under sec. 5 would seem to be an irregularity of the nature contemplated by sec. Moreover, the non-issue of a notice under sec. 5 would seem to be an irregularity of the nature contemplated by sec. 33 of the Act, and, hence, it must be specified in the appeal to the Commissioner and if not so specified cannot be urged in a subsequent suit; Rajah Gobinda Lal Roy v. Ram Janam Misser L. R. 20 L. A. 165 (1893). Now, the particular objection now taken to the non-issue of the notice under sec. 5 was strictly speaking not specified in the appeal to the Commissioner in this case, for the objection taken was as to the non-issue of a notice in respect of a sum of Rs. 206 due for the June kist of 1895, for which it was supposed the estate had been sold. In any case the inadequacy of the price for which the property was sold is neither proved nor can be inferred to be the result of the want of this notice under sec. 5 and accordingly the sale is not voidable on this ground. For these reasons we decree this appeal with costs.