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Saraswati Dasi Vs. Monindra Nath Mookerji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal125
AppellantSaraswati Dasi
RespondentMonindra Nath Mookerji
Cases ReferredSadhu Saran Singh v. Panchdeo Lal I.L.R.
Excerpt:
sale for arrears of road cess - certificate of title--certificate of unpaid demand --collector of the district--defects in service of notice and in proclamation of sale--act xi of 1859, sections 27 and 28--bengal act vii of 1868, sections 5, 8 and 11--bengal act vii of 1880, sections 2, 4, 7, 8, clause (4), 10 and 19--code of civil procedure (act xiv of 1882), sections 289 and 314. - .....now appeals and contends (1) that the subordinate judge's findings as to the non-service of the notice required by section 10, act vii of 1880, and of the proclamation of sale and as to the property having been in consequence sold for an inadequate price are wrong; and (2) that even if there has been any omission or irregularity in the service of the notice and proclamation of sale yet, as the appellant has obtained a certificate of title dated the 7th january 1887, his title cannot, under the provisions of section 8 act vii of 1868, be impeached on this ground, and cannot thereby be affected.3. we will deal first with the second of these contentions. section 8, bengal act vii of 1868, prescribes that every certificate of title which may be given to a purchaser under section 28 of act.....
Judgment:

W. Comer Petheram, Kt., C.J. and Rampini, J.

1. The plaintiff has brought this suit to set aside the sale of a taluk of hers, which was sold on the 29th November 1886 for arrears of road cess, amounting to Rs. 2-14, and which taluk was purchased by the defendant. She alleges that she received no notice of the filing of the certificate under the Public Demands Recovery Act in the office of the Collector, as required by Section 10, Bengal Act VII of 1880; that the proclamation of sale was not duly made; that the estate was in consequence sold for an inadequate price; and that the sale was confirmed before the expiry of 60 days from the date of sale, as required by Section 27, Act XI of 1859. The defendant traverses all these allegations, but the Subordinate Judge has found them to have been substantiated by the plaintiff. He has accordingly given her a decree, setting aside the sale, and has awarded her mesne profits, less a sum of Rs. 165-2, proved to have been paid by the defendant as cesses during the time he has been in possession.

2. The defendant now appeals and contends (1) that the Subordinate Judge's findings as to the non-service of the notice required by Section 10, Act VII of 1880, and of the proclamation of sale and as to the property having been in consequence sold for an inadequate price are wrong; and (2) that even if there has been any omission or irregularity in the service of the notice and proclamation of sale yet, as the appellant has obtained a certificate of title dated the 7th January 1887, his title cannot, under the provisions of Section 8 Act VII of 1868, be impeached on this ground, and cannot thereby be affected.

3. We will deal first with the second of these contentions. Section 8, Bengal Act VII of 1868, prescribes that every certificate of title which may be given to a purchaser under Section 28 of Act XI of 1859 or Section 11 of Bengal Act VII of 1868 shall be conclusive evidence in favour of such purchaser that all notices in or by Act XI of 1859 or Act VII of 1868 required to be served or posted have been duly served and posted, and the title of any person who may have obtained any such certificate shall not be impeached or affected by reason of any omission, informality or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was had at which such person may have purchased. Then it is said by Section 2, Bengal Act VII of 1880, that Acts XI of 1859, Bengal Act VII of 1868, and Bengal Act VII of 1880 are to be read as one Act. Accordingly, as the defendant has obtained a certificate of title dated the 7th January 1887, his title to the taluk cannot be assailed on the ground of irregularity in the service of the notice required by Section 10 or in that of the proclamation of sale.

4. To this it is replied on behalf of the respondent that the certificate of title referred to in Section 8, Act VII of 1868, must mean a certificate duly issued under the provisions of the Act, and that the plaintiff's certificate is not such a certificate, as it was issued before the expiry of 60 days from the date of sale, as required by Section 27 of Act XI of 1859. We think that this contention is correct. No doubt by Section 19, Act VII of 1880, a certificate obtained under the Public Demands Recovery Act is to be enforced under the practice and procedure provided by the Code of Civil Procedure in respect of sales in execution of decrees, but the provisions of Section 27, Act XI of 1859, which Act, as already pointed out, is to be read as one Act with Acts VII of 1868 and VII of 1880, apparently lay down a rule of substantive law, viz., that a sale held under the Act shall not be final and conclusive till noon of the sixtieth day from the day of sale. The confirming the sale prescribed by Section 314, Code of Civil Procedure, may be a matter of practice and procedure; but the provision that a sale shall be final and conclusive on the sixtieth day cannot be considered as such. This view has already been taken by this Court in the case of Sadhu Saran Singh v. Panchdeo Lal I.L.R. 14 Cal. 1 in which it has been said that 'all sales under Act VII of 1880 become final in the manner and at the time provided in Section 27 of Act XI of 1859.'

5. In those circumstances we do not think that the certificate of title obtained by the appellant, which was certainly issued before the sixtieth day from the sale, can cure all defects in the service of the notice under Section 10, Act VII of 1880, and of the proclamation of sale.

6. As to the facts, we have no hesitation in agreeing with the Subordinate Judge. The appellant has totally failed to prove that any attempt was made to serve the notice personally on the plaintiff, as ought to have been done under Section 5, Act VII of 1868, and the evidence adduced by him by no means satisfactorily proves that the house on which the notice was affixed was the usual and last known place of abode of the plaintiff.

7. Further, it is clear that no copy of the proclamation of sale was affixed at the Collector's office as required by Section 289, Civil Procedure Code. The property has clearly been sold for a very inadequate price, and it is a fair inference that the paucity of bidders at the sale was due to the want of publicity given to the fact of its being about to take place.

8. We further think that there is still another ground on which the sale of the plaintiff's property must be held null and void. Under Section 7, Act VII of 1880, a certificate under the Act must be made and filed by the Collector of the district. It is, however, clear that the certificate in execution of which the plaintiff's estate was sold was not made or signed by the Collector of the district, but by a Deputy Collector. The Subordinate Judge in his judgment has observed that this Deputy Collector had been authorized by the Lieutenant-Governor to discharge the functions of a Collector under Bengal Act VII of 1880, and no doubt by Section 4 of the Act the term 'Collector' has been defined as meaning the Collector of a district or any officer specially appointed by the Lieutenant-Governor to perform the functions of a Collector under this Act. But throughout the Act a distinction is clearly drawn between the Collector of a district and a Collector (see Sections 5, 9, 15, etc.), and an officer specially appointed to perform the functions of a Collector can only have the powers of the latter and not of the former. No section lays down that the term 'the Collector of a district' shall include any officer so authorized to perform the functions of a Collector, and indeed no section authorizes the Lieutenant-Governor to invest an officer with such powers. Hence to gazette an officer to perform the functions of a Collector under Bengal Act VII of 1880 will not make him the Collector of the district as required by Section 7. It may make him a Collector, or one of the Collectors of the district, but it will not make him the Collector of the district, which expression evidently refers to the officer specially appointed and gazetted by the Lieutenant-Governor to act as such.

9. We accordingly cannot but hold that the certificate in execution of which this sale was held was not duly made and filed under the Act, and all subsequent proceedings held under it must be considered to be null and void and without jurisdiction [see Clause (4) to the proviso to Section 8 Bengal Act VII of 1880].

10. For these reasons we think that the decree of the Subordinate Judge in this case is right, and we accordingly dismiss this appeal with costs.

11. The plaintiff cross-appeals as to costs, which she says the Subordinate Judge should have allowed her. Seeing, however, that she admittedly was in arrears with her road cess, we see no reason to interfere with the exercise of the Subordinate Judge's discretion in this matter. The cross-appeal therefore is also dismissed.


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