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Girish Chandra Changdar Vs. Golam Karim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal451
AppellantGirish Chandra Changdar
RespondentGolam Karim
Cases ReferredRaghubans Sahai v. Phool Kumari
Excerpt:
public demands recovery act (bengal act i of 1895) section 21 - suit to set aside a sale in execution of a certificate--civil procedure code (act xiv of 1882) sections 223, 311, 312--material irregularity--order sending certificate to another court for execution--void sale. - .....is that the present suit does not he at all, having regard to the provisions of section 312 of the civil procedure code.3. perhaps it will be convenient if i deal first with the question of the alleged irregularities, before i deal with the question as to whether or not the suit will lie. it is reasonably clear, upon the facts found by the lower appellate court, that, so far as this question is concerned, the plaintiff is entitled to succeed. it is argued for the respondent that it has been found by the lower appellate court that there was no service of notice upon the plaintiff of the certificate or of the proceedings in execution, and that, when that is once found, that ends the matter. i do not, however, think that the finding of the lower appellate court amounts to this, that the.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. This being a second appeal, we must accept the facts as found by the Lower Appellate Court. It is unnecessary for me to recapitulate the facts so found, but I shall endeavour to deal, as succinctly as I can, with the various points that have been placed before us. The object of the suit was to set aside a sale held in pursuance of a certificate granted under the Public Demands Recovery Act, the Act then in force being Bengal Act I of 1895. The grounds upon which the plaintiff asked to hare the sale set aside were certain material irregularities in the publication of the sale notification, but beyond that, his case was that the Court, which executed the certificate, had no authority to do so. I may here incidentally remark that the present litigation has been going on for many years.

2. The principal point relied on by the defendant, who is the auction-purchaser at the sale, is that the present suit does not he at all, having regard to the provisions of Section 312 of the Civil Procedure Code.

3. Perhaps it will be convenient if I deal first with the question of the alleged irregularities, before I deal with the question as to whether or not the suit will lie. It is reasonably clear, upon the facts found by the Lower Appellate Court, that, so far as this question is concerned, the plaintiff is entitled to succeed. It is argued for the respondent that it has been found by the Lower Appellate Court that there was no service of notice upon the plaintiff of the certificate or of the proceedings in execution, and that, when that is once found, that ends the matter. I do not, however, think that the finding of the Lower Appellate Court amounts to this, that the notice required by Section 10 of Bengal Act I of 1895 was not issued or served on the plaintiff. That was not the case set up by the plaintiff himself in his plaint. All that he said was that he was not aware that any notice of the certificate was served. It might have been served, although he might not have been aware of it. I think, therefore, that we ought not to accept this contention of the respondent on this point. But we think that the sending of the certificate for execution to the Birbhum Court was not authorized under Section 223 of the Civil Procedure Code. In fact very little attempt has been made to show that it was authorized, and, if it was not so authorized, that seems to us to go to the very root of the matter, for there being no power to send this certificate for execution to the Birbhum Court, it is difficult to see how the subsequent proceedings can be held to be legal. Thus the Court purporting to sell the property had no power whatever to do so. That seems to me to be sufficient to vitiate the proceedings ah initio. The proceedings are vitiated ab initio on the ground that there was no power in the Court to send the certificate for execution to the Birblmm Court. That is sufficient to show that the sale cannot stand apart from the other findings as to no copy of the sale proclamation having been affixed in the Collector's office under Section 289, and no fresh notification having been made after the sale had been adjourned from time to time. It is urged as regards the former point that it was upon the plaintiff to show that no copy of the sale proclamation was affixed in the Collector's office; but the inference I should be disposed to draw from the language of the Court below is, that, inasmuch as it was a very easy matter to prove that the sale proclamation had been so affixed, and that was not done, the Judge meant to find as a fact that it had not been so affixed. However, it is not necessary to deal with these two points as the first point is, I think, sufficient to vitiate the sale.

4. Then I come to the question whether Section 312 is a bar to the present suit. It has been held in the case of Ramrup Sahay v. Khushal Misser (1902) 3 C.W.N. 630 that Section 244 of the Civil Procedure Code does not apply to the case of execution proceedings held under the Public Demands Recovery Act, and the same view was taken in a previous case, Janki v. Das Ramgolam Sahu (1901) 6 C.W.N. 331. This, I think, throws some light upon the question as to whether or not Section 312 is a bar to the suit. It is, however, sufficient to dispose of this point by saying that, inasmuch as the primary ground for setting aside the sale was that there was no power in the Court to send the certificate for execution to the Birbhum Court, the case does not fall under Section 311, and therefore is not barred by Section 312. I am, however, prepared to go further and accept generally the reasoning of (he Division Bench of this Court in the case of Ram Taruck Hazra v. Dilwar. Ali (1901) I.L.R. 29 Calc. 94 (footnote.), after the case had been remanded by the Full Bench. It is perfectly true that the case there was under the old Act and not under Bengal Act I of 1895, but the Judges made some observations, which apply to a case under the Act of 1895. No doubt those observations were not necessary for the decision of the case before them. My view is this. The language of Section 21 of Bengal Act I of 1895 is : (1) 'such certificate may be so enforced and executed by all or any of the ways and means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money. (2) The procedure prescribed in Chapter XIX with the exception of Section 310 A' (and here I may parenthetically remark that it is obvious that Section 310 A was excluded because of the inclusion substantially of its provisions in Section 19 of Act I of 1895) 'shall, so far as it is applicable, be the procedure followed in execution proceedings '--to do what?--' to enforce such certificate and realize the amount recoverable thereunder.' It is limited to the procedure followed in execution proceedings to enforce certificates and recover the amounts due thereunder. Nothing whatever is said about the proceedings under Section 311 or Section 313. Proceedings under either Section 311 or 313 are not proceedings 'to enforce such certificate and realize the amount recoverable thereunder.' Considerable light, to my mind, is thrown upon this question by the amendment of Act I of 1895 by Act I of 1897. Section 20 of the Act, as amended, runs thus: 'Any sale of immoveable property made in the course of enforcing any such certificate may be set aside in accordance with the provisions of Sections 311 and 313 of the said Code of Civil Procedure.' Now, if the Legislature had considered that the provisions of Section 21 of Act I of 1895 included proceedings under Section 311 or Section 313 of the Civil Procedure Code, it would not have been necessary to say a word about those sections in the amending Act. Then Section 312 is not specifically mentioned in either Act, and this seems to indicate that that section was not intended by the Legislature to apply. In my opinion Section 312 is no bar to the present suit. The case of Raghubans Sahai v. Phool Kumari (1905) I.L.R. 32 Calc. 1130 seems to support this view. The appeal fails and must be dismissed with costs.

Geidt J.

5. I agree.


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