Judgement Appeal (No. 130 of 1916) from a judgment and decree of the High Court (February 7, 1913) reversing a decree of the Subordinate Judge of Zillah Cuttack. On January 12, 1907, a decree was obtained against the respondents Nos. 1 to 13, and others, for arrears of rent in respect of a saleable under-tenure. Part of the decretal amount was paid, and upon an application on June 27, 1907, for execution the property was ordered to be sold for the balance under Ben. Act VIII. of 1865. The auction sale took place on September 27, 1907, when the property was bought for Rs. 4,200 by the deceased appellant. Within thirty days of the date of the sale the judgment debtors paid into Court the balance due under the decree, and applied under s. 174 of the Bengal Tenancy Act (VIII. of 1885) to the Deputy Collector, who had held the sale, to set it aside. The material terms of the section are set out in the judgment. The Deputy Collector set aside the sale, but his order was reversed by the Collector, whose decision was affirmed by the Commissioner. The deceased appellant was accordingly put into possession. On May 26, 1909, the respondents Nos. 1 to 14 sued the deceased appellant and the respondents Nos. 15 to 19, the zamindars, claiming (inter alia) that the deceased appellant had not acquired any title in the property. The deceased appellant, who alone defended, by his written Law. Rep. 48 Ind. App. 123 ( 1920- 1921) Lakshmidar Mahanti V. Ratnakar Mahapatra 31 statement traversed the material allegations in the plaint. The Subordinate Judge held that s. 174 of the Bengal Tenancy Act, 1885, did not apply, and dismissed the suit. Upon an appeal to the High Court the decision was reversed. The learned judges (Chitty and Trennon JJ.) held, following the decision of the Court in Barkal Parida v. Jogendra Nath Sen (( 1911) 16 Cal W. N. 311.), which was given after the decision appealed from, that s. 174 applied in Orissa, and that the plaintiffs were entitled to have the sale set aside. 1921. March 3. H. N. Sen for the appellant. This case is distinguishable from that relied on by the High Court, as it does not appear to have been conceded in that case that the sale was under Ben. Act VIII. of 1865. 1921. March 3. H. N. Sen for the appellant. This case is distinguishable from that relied on by the High Court, as it does not appear to have been conceded in that case that the sale was under Ben. Act VIII. of 1865. But in any case the section was too wide. The decree in this case was obtained in the Collectors Court under s. 23, sub-s. 4, of Act X. of 1859. By s. 105 of that Act the procedure as to sale is that provided by Ben. Act VIII. of 1865, which by ss. 8, 9, 10, 11, 13, 14, 15 and 17, provides a code. Sect. 174 of the Act of 1885 applies only to sales in suits under the Civil Procedure Code. Ben. Act VIII. of 1865 is not among the Acts repealed by the Act of 1885 ; s. 2, sub-s. 2, provides merely that upon an extension to Orissa such parts of the existing law as are inconsistent shall be repealed. Under s. 162 of the Act of 1885 all proceedings connected with sales under ch. xiv. of the Act are dependent upon an application under s. 235 of the Civil Procedure Code, 1882. But that section was never in force in Orissa in that connection, as s. 143 of the Act of 1885 was not extended. The respondents did not appear. The judgment of their Lordships was delivered by LORD DUNEDIN. On January 12, 1907, a person got a decree for arrears in respect of rents of lands in Orissa. In respect of that decree, the lands were on June 27, 1907, ordered to be sold, and on September 27, 1907, the father of the appellant, whom he now represents, was declared the purchaser. Within thirty days thereafter, the judgment debtor deposited the full sum and costs, and accordingly on December 23, 1907, the sale was set aside under the terms of s. 174 of the Bengal Tenancy Act of 1885. Against that setting aside an appeal was taken to the Collector, who reversed the judgment of the Deputy Collector and confirmed the sale. An appeal from his decision was taken to the Commissioner, who, on July 15, 1908, upheld the decision of the Collector, and on February 16, 1909, a sale certificate was granted. Against that setting aside an appeal was taken to the Collector, who reversed the judgment of the Deputy Collector and confirmed the sale. An appeal from his decision was taken to the Commissioner, who, on July 15, 1908, upheld the decision of the Collector, and on February 16, 1909, a sale certificate was granted. On May 26, 1909, the present suit was raised in the Civil Court by the judgment debtor, and the Subordinate Judge, taking the same view as the Commissioner had taken, by his decree dismissed the suit. An appeal was taken to the Calcutta High Court, and the Calcutta High Court dealt with it as follows " The point as to whether s. 174 of the Bengal Tenancy Act applies to sale of a holding in Orissa is concluded by authority in the case of Barkal Parida v. Jogendra Nath Sen (16 Cal. W. N. 311.), decided in this Court," and they accordingly reversed the decree of the Subordinate Judge. An appeal has now been taken to His Majesty in Council against the decree of the High Court. It is therefore practically an appeal against the judgment in the case just cited. The whole point is this The Bengal Tenancy Act as originally passed by s. 1, sub-s. 3, did not apply to the Division of Orissa ; but by s. 2, sub-s. 2, it was contemplated that it might be eventually extended to Orissa, and it is there enacted " When this Act is extended to the Division of Orissa or any part thereof, such of those enactments as are in force in that Division or part, or, where a portion only of this Act is so extended, so much of them as is inconsistent with that portion, shall be repealed in that Law. Rep. 48 Ind. App. 123 ( 1920- 1921) Lakshmidar Mahanti V. Ratnakar Mahapatra 32 Division or part." Besides that there is a general repealing section. In this section Act VIII. of 1865 is not included among the Acts repealed. The Bengal Tenancy Act was extended to Orissa by Order published in the Calcutta Gazette on January 9, 1907. Sect. 174 of that Act deals with applications to set aside a sale. In this section Act VIII. of 1865 is not included among the Acts repealed. The Bengal Tenancy Act was extended to Orissa by Order published in the Calcutta Gazette on January 9, 1907. Sect. 174 of that Act deals with applications to set aside a sale. It says " Where a tenure or holding is sold for an arrear of rent due thereon, then, at any time within thirty days from the date of sale, the judgment debtor may apply to have the sale set aside, on his depositing in Court .... the amount recoverable under the decree," and so on. Then it provides that there shall be an order setting aside the sale. It is quite obvious that those words apply to the facts in this case, because the amount was deposited within thirty days of the sale. The sale being in September, 1907, was after the extension to Orissa of the Bengal Tenancy Act. Accordingly the whole argument really turns on this that s. 174 can only apply to suits that originate in the Civil Court, and cannot apply to suits that originate in the Collectors Court under the law as it stood in Orissa before this section was introduced. Under the law as it stood in Orissa, under Act VIII. of 1865—the sections need not be gone through, because the result of them can be given quite shortly—the period is eight days for setting aside a sale like this instead of thirty. The matter was dealt with by the Calcutta High Court in the judgment already cited. They say (16 Cal. W. N. 311, 312.) "It has been argued that if the intention of the Legislature was that the extension of any portion of the Bengal Tenancy Act would by implication operate as a repeal of the provisions of Act VIII. of 1865, mention would have been made of the latter Act in the first Schedule. In our opinion there is no force in this contention." Then they go on to say it would be meaningless to hold that s. 174 of the Bengal Tenancy Act has been extended to the Division of Orissa, but that it has no application to a sale held there under that Act. Their Lordships think that is plain common sense, and that to hold that s. 174 did not apply would really be to render the legislation meaningless. Their Lordships think that is plain common sense, and that to hold that s. 174 did not apply would really be to render the legislation meaningless. They will therefore humbly advise His Majesty to dismiss the present appeal with costs ; but they add that, inasmuch as it has been represented to them that the purchase money has not been returned, nothing that they are here saying must be understood as in any way preventing an application to the proper Court in India for the return of the purchase money.