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Umed Ali Bhuyan Vs. Raj Laksmi Debya - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1906)ILR33Cal84
AppellantUmed Ali Bhuyan
RespondentRaj Laksmi Debya
Cases Referred and Ramrup Sahay v. Khushal Misser
certificate - public demands recovery act (bengal act i of 1895, amended by bengal act i of 1897) sections 7, 15, 17, 19, 20, 31--sale--suit--code of civil procedure (act xiv of 1882) section 244. - .....section 244, which presupposes the existence of a valid and binding decree, has any application.11. we hold therefore that, if there be, as does not appear to be the case, any ground for impugning the regularity of the sale proceedings, section 244 is a bar to an enquiry into such matters in the present suit.12. the appeal is therefore dismissed with costs.

Brett and Woodroffe JJ.

1. A certificate was filed under Section 7 (1) h of Act I of 1895 against the appellant on 26th March 1898 for an arrear of Rs. 207-13-0 on account of rent, cesser and interest for the years 1303, 1304 B.S. It has been fount that notice was duly served under Section 10 on 23rd May 1898. No petition of objection was filed under Section 12. A certain amount was realized, some moveable property of the appellant having been sold in July 1898 in execution. For the balance due execution was taken against the holding in arrear, which was sold on the 9th January 1900.

2. The present suit was instituted on the 30th July 1900 to cancel the certificate and set aside the sale. The plaintiff alleges that a certificate was made without his knowledge for a sum based on the rent being Rs. 180 instead of Rs. 83-12-0, which is alleged by him to be the rate settled during a recent cadastral survey: he further alleges that no notice was served; that there was no rent in arrear; and that the certificate proceedings and execution taken thereunder were fraudulent.

3. The plaintiff's suit has been dismissed by both Courts both on the merits and on the ground that the suit is barred by limitation.

4. In second appeal it has been contended firstly that the suit is not barred in any respect as the period of limitation prescribed by Section 15 of the Act will (as is the case) only run if the certificate and notice are valid, and that they are not so: and secondly that assuming the suit is barred under Section 15 in so far as it seeks to have the certificate cancelled, that section does not bar the suit in so far as it seeks to set aside the sale.

5. Upon the first point it is contended that the certificate and notice are bad because the annual jama is stated to be Rs. 180 and not Rs. 83-12-0, the rate at which it is alleged to have been settled. It is not contended that the particulars required to be given in the certificate and notice have. not been given, but it is said that they have been wrongly given. It has been found as a fact that the jama stated in the certificate had been realized in previous years. But assuming the case on the facts to be as alleged by the appellant, we are of opinion that the mere fact that a greater sum is claimed as due in the certificate than is in fact due does not make the certificate and notice bad. To hold other-' wise would enable a judgment-debtor to set aside a certificate on account of an excessive claim, when the Act declares in Section 17 (I) (b) that it shall not be cancelled except where no part of the amount stated in the certificate was due by the judgment-debtor under the certificate. A certificate can only be modified on such a ground provided that a suit for such purpose is not barred.

6. We therefore hold that the certificate and notice were not invalid so as to prevent time running against the appellant, provided that the notice was duly served.

7. The next contention is that, assuming that the certificate and notice are not invalid, they were not duly served under Section 10 read with Section 31. It is said that the return of service does not show that the judgment-debtor could not be (as has been held to be the fact) discovered: that no adult male member of the judgment-debtor's family residing with him could be found on whom service might and should have been made under Section 31. Reliance has been placed upon an unreported decision in Special Appeal 730 of 1903, in which it was held that the procedure prescribed by Section '61 should be strictly followed. We agree with that decision on this point. In this case, however, the particular point now taken does not appear to have been raised in the Court of first instance in which the plaintiff's contention was, not that there was a defect in service, but that there was no service at all, the processes having been fraudulently suppressed. A similar contention was raised in appeal to the lower Appellate Court. There is no ground of appeal to this Court on this point; and the return of service, which is relied on, and the evidence have not been printed. It may well be that, if, as alleged, the return of service makes no mention of any attempt to serve an adult male member of the judgment-debtor's family, the Court may, as suggested by the learned Government pleader, have taken other evidence upon which it came to its finding that the notice had been duly served. As we have had occasion to repeatedly point out, it was the duty of the appellant not only to state specifically all the points which he desires to raise in the grounds- of appeal, but to translate and print all documents-upon which reliance is placed in support of those grounds. In the absence of any material before us to impugn the finding of the ower Court that the notice was duly served, we must hold that it was duly served.

8. We hold therefore that the suit not having been brought within six months from the date, of service of notice it is barred in so far as it seeks to have the certificate cancelled.

9. It is next contended that the suit is not barred in so far as seeks to set aside the sale. Now the sale can be set aside on two grounds; firstly, because the proceedings which are alleged as the foundation for execution are bad. So, as the authority to proceed to the sale is based on the certificate which has the effect of a decree, if there is no valid certificate there can be no foundation for the sale. In such cases the objection is that there can be no execution at all and the sale held in execution will be set aside. We have already dealt with the objections of this character which are made in this case and have held them to be unsustainable. Secondly, a sale can be set aside not on the ground of the invalidity of the proceedings, which are the foundation of the sale, but for fraud or irregularity in the execution proceedings themselves. In this case fraud has been negatived. But if the sale is-impeached on grounds of irregularity, the judgment-debtor must proceed under Section 20 of the Act. In such a case Section 244 of the Code bars a separate suit. It has been contended that Section 244 does not apply and reliance has been placed on the following cases: Ram Taruck Hazra v. Dilwar Ali (1901) I.L.R. 29 Culc. 94 (note); Janki Das v. Ram Golam Sahu (1901) 6 C.W.N 331 and Ramrup Sahay v. Khushal Misser (1903) 6 C.W.N. 630. The first case was decided under the old Act VII of 1880 and the second under the present Act I of 1895, but before its amendment. by Act I of 1897. Further, in the last case the proceedings anterior to execution were alleged to be bad for want of service of notice under Section 10. The Act as so amended is explicit, and by Section 19 enacts ' (1) every certificate made under Section 5, 7 or 9 may be enforced and executed, with interest at the rate of six per, -centum per annum from the date of the certificate being filed up to the date of realization, and costs, upon the expiry of one month from service of the notice mentioned in Section 10, or when any such petition as is mentioned in Section 12 has been filed then as soon as such petition has been heard and determined; (2) such certificates may be enforced and executed in the manner provided by chapter XIX of the Code of Civil Procedure for the enforcement of decrees for money; and all the provisions of that chapter, -except Section 310A thereof, and of chapter XX of the said Code, shall apply so far as they are applicable.'

10. Section 244 is one of such sections and is clearly applicable when the only grounds alleged for setting aside a sale are irregularities, not in the proceedings anterior to decree or in the decree which is sought to be executed, but in the execution proceedings subsequent to decree. It is true that in the last of the above-mentioned cases the Court referring to the case above cited stated that Section 244 of the Civil Procedure Code did not apply to the case of execution proceedings held under the Public Demands Recovery Act. We are not sure that the Court had it in its mind to decide the point, which is now before us, but, if so, the decision was unnecessary, as in that case the sale was sought to be set aside on the grounds, amongst others, of fraud and non-service of the notice under Section 10,. both affecting the validity of the decree, to neither of which cases Section 244, which presupposes the existence of a valid and binding decree, has any application.

11. We hold therefore that, if there be, as does not appear to be the case, any ground for impugning the regularity of the sale proceedings, Section 244 is a bar to an enquiry into such matters in the present suit.

12. The appeal is therefore dismissed with costs.

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