JUDGMENT 1. A preliminary objection was taken as to the competence of the Plaintiff to bring this appeal or indeed to sue at all in respect of this estate on the ground that the estate had passed out of her hands by sale under a mortgage decree. This sale in execution however was held on the 19th June 1907 and the revenue sale now in dispute was held on the 26th March 1907. 2. The decree on the mortgage has moreover been impugned in a regular suit and the matter has been carried to His Majesty in Council. We are asked to postpone the hearing of this appeal until the decision of their Lordships of the Privy Council in the suit to set aside the mortgage decree. 3. This we decline to do on the simple ground that there was an interval of nearly three months between the revenue sale and the mortgage sale and should the Plaintiff succeed in this suit she would be entitled to mesne profits out of the estate from the date of the revenue sale till the date of the mortgage sale and therefore has a subsisting interest in the estate itself and can therefore carry on this appeal. 4. This is an appeal from the judgment and decree of the Subordinate Judge of Midnapur dismissing Plaintiff's suit to cancel an alleged revenue sale under the following circumstances: The Plaintiff, a purdanashin lady, purchased an eight annas share of Mehal Goumokta, No. 944 Towji in the Midnapur Collectorate, at a Civil Court sale on the 21st September 1904. The eight annas share was a separate revenue-paying estate known as separate account No. I. There was an arrear in the kist for January 1907 and on the 25th March 1907 the Plaintiff applied to the Collector praying for exemption from sale of the said share upon payment of the revenue in arrear, vide Ex. 7, p. 25 P. B. On this the Collector endorsed : " May accepted if paid to day." The Plaintiff's karpardar thereupon went to the arrear collection mohurrir for information as to the Government demands due which were required to be paid. The information given to him was that Rs. 807 was the total amount due and this sum was deposited on the same day. It appears that a certificate which had been issued against the Plaintiff for Rs. The information given to him was that Rs. 807 was the total amount due and this sum was deposited on the same day. It appears that a certificate which had been issued against the Plaintiff for Rs. 69-13-9 for arrears of embankment charges (pulbandi) was not mentioned to the Plaintiff's agent and accordingly was not paid On the following day March 26th the estate was put up for sale under Act XI of 1859 and not under the certificate and sold for the nominal price of Rs. 500 the property being valued at Rs. 50,000. The Defendant No. 2 purchased it and subsequently sold it to Defendant No. 1. The Plaintiff's appeals to the Commissioner and to the Board of Revenue were dismissed and she therefore brought this suit. 5. We may mention that although the point now in issue, namely, whether the estate could be sold for arrears of pulbandi only under Act XI of 1859 without taking the necessary steps under sec. 5 of the Act was raised in express terms in the appeal to the Commissioner it does not appear that the point was urged before him, or, if it was, he did not consider it necessary to notice it. The question, however, which would arise under sec. 33 of the Act is not material inasmuch as it is admitted that if this was a sale under the Revenue Sale Law at all it cannot be set aside. 6. The only point which really arises in this case is whether the sale for an arrear of Rs. 69-13-9 for pulbandi which was already the subject of a certificate, the sale under which was fixed for the same day 26th March, could be held under the Revenue Sale Law in face of the fact that the Collector's Ledger Book, the chalans given to the Plaintiff, the Rubokari of the 24th May 1907 and the order for sale on the account list of arrears of revenue payable all show that the revenue and other charges had been fully paid up and that nothing remained due but the sum of Rs. 69-13-9 under the certificate 4654. 69-13-9 under the certificate 4654. The account list on pages 9-16 of the Paper Book clearly refers to the certificate which will be found on p. 36, and the Collector must have known when he passed the order that the only debt due from the estate was already the subject of a certificate decree or, if he did not, the Plaintiff ought not to suffer for his laches. Now this certificate was issued not only against the Plaintiff as proprietress but against one Jogendra Nath Pathak the usufructuary mortgagee in possession and this is urged as a further ground for holding that the estate could not be sold under Act XI of 1859 as for an arrear of Government revenue. No arrear of Government revenue was or could be due from Jogendra Nath Pathak yet he was equally liable with the Plaintiff for the pulbandi arrear for which the estate was actually sold. 7. The Sub-Judge refused to admit the Collector's Ledger as it was tendered at a late stage of the case, but we thought it right to admit it as a public document about which there was no dispute and the learned Vakil for the Respondents very frankly admitted that he could have no objection to its going in, though he asked us at the same time to take in the judgment in appeal of the Commissioner. This we saw/no objection to doing and we have already dealt with it above. We may point out that there is evidence that the existence of the arrear of Rs. 69-13-9 may have purposely been withheld from the Plaintiff for we find certain pencil calculations on the back of Ex. I showing that the person who estimated the Plaintiff's dues of Rs. 807-1-1 had Ex. I actually before him and in his hands when he made the calculation. One of the witnesses who knows the mohurrir Probhat Chandra's handwriting well and who attests it in the entries made in ink in Ex. I does not venture to deny that the pencil entries are his but says he cannot make out in whose writing they are. This witness, Utpal Chandra Bhattacherjee, Land Revenue Towji mohurrir, says that parties have always made all necessary enquiries from Probhat and this practice has been going on ever since he joined the department. I does not venture to deny that the pencil entries are his but says he cannot make out in whose writing they are. This witness, Utpal Chandra Bhattacherjee, Land Revenue Towji mohurrir, says that parties have always made all necessary enquiries from Probhat and this practice has been going on ever since he joined the department. He significantly asks " From whom but Probhat Babu should parties get these informations as to how much is deposited ?" and this rather discounts the value of the Commissioner's judgment which is based on the fact that Plaintiff's agent had no business to rely on casual enquiries from a busy man like the mohurrir Probhat on the day before the sales. Probhat himself gives a very half-hearted denial to the pencil entries and we must take it that he alone had the opportunity of making them. He does not deny that the Karpardaz came to him for information but says he does not remember, but he admits that he was the man who the very next day certified to the Collector that Rs. 69-13-9 remained unpaid without drawing any attention to the fact that this sum was due under a certificate for pulbandi, although the order-sheet was before him and he boasts in his evidence that he could not make an incorrect statement under those circumstances. Yet the order-sheet (pp. 9-16) clearly shows the reference number of the certificate on the face of it. 8. We fully appreciate the importance of the dictum of their Lordships of the Judicial Committee in the case of Gobind Lal Roy v. Ramjanam Misser I. L R. 21 Cal. 70 at p. 83 (1893) that anything which impairs the security of purchasers at revenue sales tends to lower the price of the estates put up for sale and that the purchaser should not be exposed to the danger of having his sale set aside after a year upon new grounds. 9. But the ground taken in this case is not new. It is the ground that has been apparent on the face of the Collectorate proceedings from the beginning and was taken in the grounds of appeal to the Commissioner. 9. But the ground taken in this case is not new. It is the ground that has been apparent on the face of the Collectorate proceedings from the beginning and was taken in the grounds of appeal to the Commissioner. Having regard to the carelessness, apparent in this case with which any and every statement of a mohurrir is accepted by the Subordinate Revenue Officers and passed on to the Collector and to the immense temptation these mohurrirs are under to traffic in revenue sales, we think that the evidence of the bond fides of the mohurrirs should be most carefully scrutinized and when as in this case there appears prima facie suspicion of misrepresentation, the technical effect of the Collector's orders should be very strictly interpreted in favour of the Plaintiff. 10. There is no direct evidence of an attachment under the certificate for Rs. 69-13-9 but the certificate itself obtained the force of a decree on the 12th March 1907 when it was filed and the order for sale on 26th March which was passed on the same day is clearly an order for execution of the decree by sale and operates as an attachment within the meaning of sec. 17, for the words of that section are not "ordered to be attached'' but "held under attachment by the revenue authorities otherwise than by order of a judicial authority." But the sale is not bad on that ground alone since the attachment if any was made after the last day of payment and after the estate had become liable to sale for arrear of Government revenue. Bunwari Lall v. Mahabir Prasad 12 B. L. R. 297 (1873). But the main ground for holding that the sale must be set aside is that it is not for arrears of revenue at all. Sec. 33 says " No sale for arrears of revenue shall be annulled by a Court of Justice," it does not say " no sale purporting to be for arrears of revenue shall be set aside." 11. It is in vain to say that the Collector could have sold the estate for arrears of embankment charges if he had not issued a certificate and had proceeded under sec. 5 of the Act. 12. It is urged that the omission to proceed under sec. It is in vain to say that the Collector could have sold the estate for arrears of embankment charges if he had not issued a certificate and had proceeded under sec. 5 of the Act. 12. It is urged that the omission to proceed under sec. 5 is a mere irregularity but their Lordships of the Judicial Committee did not lay this down in Gobind Lal Roy v. Ramjanam Misser T. L. R. 21 Cal. 70 at p. 83 (1893) and the only authority we have been referred to, the case of Deonandan Singh v. Manbodh Singh I. L. R. 32 Cal 111 (1904). merely says that the non-issue of a notice under sec. 5 is an irregularity which does not make a sale a nullity unless the ground has been specified in the appeal to the Commissioner. This case is rather in Plaintiff's favour and in any case no notice under sec. 5 was held to be necessary in that case as the arrears were not other than those of the current year or of the year immediately preceding. 13. But to say that no notice under sec. 5 is necessary when the sale is not for arrears of revenue at all but for other demands recoverable by the same process as land revenue is going very much further than any authority with which we are acquainted, more specially when the arrears of pulbandi are already under process of recovery by the certificate procedure. 14. It is useless to enter into an examination of all the facts and documents referred to by the learned Sub-Judge. The first five issues which he set himself to try were decided in favour of the Plaintiff. The roth issue was the most important in the light of the questions as framed and the principal part of his judgment is upon this, viz., whether there were any arrears of revenue due by the Plaintiff for which the property was sold. 15. It is of course perfectly clear that the head-note to Ex. 12 which is the certified copy of the Collector's order Ex. I is not part of the document at all. But we have the whole document in original at pp. 9-16 and that document shows that the Collector was misled into thinking that the arrear of Rs. 15. It is of course perfectly clear that the head-note to Ex. 12 which is the certified copy of the Collector's order Ex. I is not part of the document at all. But we have the whole document in original at pp. 9-16 and that document shows that the Collector was misled into thinking that the arrear of Rs. 69-13-9 which clearly appears by the reference to the certificate to be an arrear of pulbandi was as a matter of fact an arrear of revenue, and on this he ordered an immediate sale on the sale proclamations already issued under sec. 6 of Act XI of 1859. The proclamation is to be found on pages 76-77 and shows that the arrear of land revenue was Rs. 547-10-10. 17. Now it is clearly established by the Collectorate Ledger exhibited in this Court by the challans Ex. 2 (series), pp. 12-16, supplemental paper-book, and by the Collector's Rubokari on the 24th May 1907 that this Rs. 547-10-10 had been fully paid up and receipts granted for it. 18. It is true no formal order of exemption had been passed in respect of it and therefore the estate was still liable to sale for this arrear as advertised, but it is equally clearly established by these same papers that the estate was not sold for those arrears but for the Rs. 69-13-9 due for pulbandi under the certificate. These are all the findings of fact that are necessary to dispose of issues 6 to 10. 19. Applying the law as we understand it and following the principles laid down by the Judicial Committee in the case of Gobind Lal Roy v. Ramjanam Misser I. L. R. 21 Cal. 70 (1893) we are of opinion that the sale as held on the 26th March 1907 was not a sale for arrears of land revenue and that it was not competent to the Collector to hold such a sale under Act XI of 1859. 20. 70 (1893) we are of opinion that the sale as held on the 26th March 1907 was not a sale for arrears of land revenue and that it was not competent to the Collector to hold such a sale under Act XI of 1859. 20. It appears to us that when the Collector has acknowledged payment in full of the arrears of land revenue for which the sale was advertised and has elected to proceed by certificate procedure against an arrear of a different character and has already directed a sale under that procedure he cannot turn round and treat the arrear under the certificate as an arrear of land revenue without any notice to the parties under sec. 5, and proceed to sell the property under the land revenue proclamation on the mere ground that no special exemption order has been passed. The embankment charges ordered to be levied under the Certificate Act are taken out of the purview of Act XI of 1859. Unless and until fresh notices are issued under sec. 5 and they cannot be treated as arrears of land revenue. The sale therefore not being for an arrear of land revenue is liable to be set aside and the judgment and decree of the Subordinate Judge must be discharged with costs.