1. These two appeals for which a common judgment will suffice, arise out of two suits instituted by the Government under Section 14 of the Madras Railway Protection Act to recover the cost of protective works executed by the Government on the landholder's default under Section 5 of the Act. The preliminary proceedings under the Act were commenced in the year 1928 and the local Government issued an order under Section 9 of the Act in September, 1931, which was served on the first defendant a month later. He made several applications for time and eventually the protective works were carried out by the Executive Engineer and notice under Section 10 was served on the first defendant on the 2nd March, 1937. By that time, however, the first defendant had no further interest in the two tanks, because his property had been sold in Court auction and purchased by the second defendant on the 8th August, 1934.
2. In pursuance of this purchase possession was taken by him on the 6th February, 1935) two months before the repairs were completed. As soon as the notice under Section 10 was served upon the first defendant, he wrote to the Collector informing him that he had lost his interest in the property and that the second defendant had become the purchaser. Accordingly, fresh notices under Section 10 were served on the second defendant on the 10th and 19th April, 1937 and when he refused to pay, the two suits were instituted against both the defendants for the recovery of the amount expended together with costs and interest. The trial Court decreed both the suits against the second defendant only after making some small deductions with which the appeals are not concerned. The second defendant appealed on three grounds. Firstly, he contended that the tanks in question were not railway affecting tanks, secondly that he was not the landholder and thirdly that in any event he was not liable as the proceedings had been commenced against the first defendant only. On the first two points the learned Subordinate Judge found against him; but on the third point he found that the second defendant was not liable for the reason that the proceedings had been initiated against the first defendant. In the result he set aside the decree against the second defendant and substituted for it a decree against the first defendant under the provisions of Order 41, Rule 33, Civil Procedure Code. These two) appeals have been brought by the Government and the only question which has been argued is whether the second defendant is liable.
3. In support of his case, the learned Government Pleader relies solely on the wording of the various sections where a distinction is drawn between the landholder in possession and the landholder. On examining the scheme of the Act it will be seen that when the Collector is made aware that protective measures are necessary, he causes plans and estimates to be prepared and records a statement of the extent to which in his opinion 'the landholder in possession' is liable to contribute towards the cost of the protective measures. Under Section 5 of the Act the Collector has to send copies of the plans, estimates and the statement which he has prepared to the 'landholder so named as aforesaid' calling upon him to carry out the repairs or to appear before the Collector and show cause against the order. If there be any appearance to show cause against the order, and it is not cancelled or modified, the Collector must then issue a written notice to the ' landholder so named as aforesaid ' calling upon him to carry out the repairs already directed within the time specified. It is in the event of the repairs not being carried out that the matter is then reported to the Governor in Council and the order passed has to be sent to ' the landholder.' There is no dispute that up to and including the issue of the order of the Governor under Section 9 of the Act, the first defendant was the landholder and the only person who was in possession or otherwise interested in these two tanks. It was between the service of the order under Section 9 of the Act and the notice under Section 10 that the ownership and possession of the tanks changed hands but Mr. Kuttikrishna Menon contends that this change makes no difference to the procedure under the Act. He points out that up to and including the obligatory notice under Section 7 of the Act, notices have to be served upon or orders issued to the landholder who is named in the statement which has been recorded under Section 4 of the Act. Section 5 refers to the ' landholder named in the statement' and Section 7 refers to ' the landholder so named as aforesaid.' When it was discovered that the tanks had changed hands, the rest of the proceedings were taken against the second defendant but Mr. Kuttikrishna Menon stresses the absence of any words in Sections 10, 12, 13 or 14 indicating that these subsequent, proceedings can be taken only against ' the landholder named in the statement.' His argument receives considerable support from the fact that Section 14 of the Act, which gives the Collector the right to institute a suit for the recovery of the cost of the protective works, contemplates a suit only against any landholder upon whom a notice shall have been served under Section 10, Section 11 or Section 12. This indicates that the right of suit does not depend upon any of the proceedings under the earlier sections but only upon the proceedings subsequent to the Government order under Section 9 of the Act. In order to make the landholder liable he must have been served with a notice either under Section 10, 11 or 12 or neglected to pay the costs of the repairs in full or in part. Notice was admittedly served on the first defendant under Section 10 of the Act but by the dates of the notice he had ceased to be the landholder. Therefore, under Section 14 of the Act, the Collector would have no cause of action against the first defendant in any event. His cause of action lay only against the second defendant on whom notices have admittedly been served under Section 10 of the Act. Mr. Rangaswami Iyengar, the learned advocate for the second defendant, has strenuously contended that according to the scheme of the Act, the cause of action is personal and lies only against the landholder on whom the initial notices had been served and against whom the proceedings had first been instituted. This contention is not in accordance with the provisions of Section 14 giving the right of suit. No authority has been cited in support of this contention and I think the absence of authority is amply explained by the fact that the words of the Act are devoid of any ambiguity.
4. In the result, I disagree with the finding of the learned Subordinate Judge that only the first defendant is liable. The decree is ordered to be set aside and the decree of the trial Court restored with costs both here and in the lower Courts against the second defendant. The first defendant is not an appellant but it is conceded that the decree against him is wrong and has to be set aside.
5. Leave refused.