1. This is an appeal from a judgment and decree of the Subordinate Judge of Gaya, who, holding that the Secretary of State was a necessary party to a suit for recovery of possession of property on the ground that a certificate and a sale under it had in no way affected the plaintiff's rights Being ab initio null and void, dismissed the suit.
2. The appellant maintained and still maintains that so long as he does not seek to set aside the decree or the sale but merely for a declaration that his title and possession are not affected by the decree and the sale, he is entitled to sue without making the Secretary of State a party to the suit.
3. It is argued that the ruling in the ease of Gobinda Chandra Shaha v. Hemanta Kumari Debi 31 C. 159, does not apply to this case. It appears to us that the plaintiff does not seek to set aside the sale and if it is a matter of indifference to him whether the decree stands or not then that ruling does not apply.
4. Then as regards the distinction, which the learned Subordinate Judge has drawn in the case bf Moti Lal v. Karrbuldin 25 C. 179 : 24 I.A. 170, where their Lordships of the Privy Council observe that "between setting aside a sale and holding that the plaintiff's rights are not affected by it there is a wide difference," the learned Subordinate Judge appears to think that this observation only applies to a question of limitation, but if he had gone a little further and considered how that limitation arises, lie would have found out that the observation of their Lordships would have been meaningless unless the plaintiff could bring such a suit as this and could avail himself of his 12 years' limitation; for if a question of execution is necessarily involved in a case of this kind, then Section 244 would always come in as a bar. The observation of their Lordships seems to point to the conclusion that such a suit as this can lie provided the plaintiff takes the risk of losing his case if the Court finds that he cannot get relief without setting aside the decree and the sale.
5. We think that the order of the Subordinate Judge was not justified and we accordingly set aside his judgment and decree and direct that a fresh hearing be had on the basis that the plaintiff is suing merely for a declaration that his rights are not affected by anything that is done under the certificate and for recovery of possession.
6. In the circumstances, the plaintiff appellant is not entitled to any costs in this Court, but we direct that the Court-fee paid for the purposes of this appeal be refunded to him.