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Matungee Churn Mitter Vs. Moorrary Mohun Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal175
AppellantMatungee Churn Mitter
RespondentMoorrary Mohun Ghose and ors.
Excerpt:
putni tenure, sale of, for arrears of rent--regulation viii of 1819, section 8, clause 2, and section 14--date of publication of notice. - .....which is to be accepted only in case of inability to procure the receipt of the defaulter. it might very well be that the previous day or days had been spent in vain efforts to procure the signatures of the putnidar or his agent, and that the receipt was afterwards completed by the signatures of the munduls, obtained on the 15th of bysack, and this might well have satisfied the collector that the notice had been in fact published previous to the 15th. that being so, and no injury to the plaintiff being at all made out, it appears to me that the ground set up is wholly insufficient to induce this court to set aside the sale. it may be added as it appears in this particular case that the sale, instead of taking place on the 1st of joisto, did not take place until the 3rd, and therefore.....
Judgment:

Jackson, J.

1. In this case, the suit was brought for the purpose of setting aside the sale of 12-anna share of a putni tenure held by the defaulter. A great number of objections, some of a frivolous kind, and some of an unjustifiable kind, have been brought forward in appeal, but the only one which deserves notice or which was seriously pressed is that where it is contended that the notice in this case does not appear to have been published before the 15th Bysack, the sale having taken place on the 3rd Joisto following. Now, it is to be observed that the Legislature, in passing Regulation VIII of 1819, for just and equitable purposes, prescribed a variety of forms required to be gone through by zemindars, on applying for the sale of a putni tenure for arrears, accrued due thereon, some part of the procedure being carried out by officers of the Collector's establishment: and one of the matters prescribed by Section 8, Clause 2, is that the Collector should be satisfied of the service of the notice, either by the receipt of the defaulter, or of his manager; or, if that cannot be procured, then by the signature of three substantial persons residing in the neighbourhood. Then it says: 'If it shall appear from the tenor of the receipt or attestation in question, that the notice has been published at any time previous to the 15th of the month of Bysack, it shall be a sufficient warrant for the sale to proceed upon the day appointed.' That and other rules having been so laid down, Section 14 of the same Regulation says: 'It shall be competent to any party desirous of contesting the right of the zemindar to make the sale, whether on the ground of there having been no balance due, or on any other ground, to sue the zemindar for the reversal of the same, and upon establishing a sufficient plea to obtain a decree with full costs and damages.' The meaning of that provision, as it appears to me, is, that, if the defaulter or the alleged defaulter should be able to make out that the zemindar was not in a condition to obtain the sale of his under-tenure, that there had been no balance due, or that the procedure enjoined by the Regulation had been neglected, so that the defaulter has been prejudiced by reason of that neglect, then the Civil Court is declared entitled to set aside the sale and to grant a decree to the plaintiff with full costs and damages. But it certainly would be no 'sufficient plea' or substantial cause of complaint that the receipt in question had been obtained, or that the notification had been published on, instead of previous to the 15th of the month of Bysack. The law says that if it shall appear, that is, appear to the Collector, that the notice has been published at any time previous to the 15th of the month of Bysack, that shall be a sufficient warrant for the sale to proceed. Now, in the receipt which has been read to us in this case, the particular time of publication is not stated. The receipt is dated the 15th, and has the signatures of three substantial persons which is to be accepted only in case of inability to procure the receipt of the defaulter. It might very well be that the previous day or days had been spent in vain efforts to procure the signatures of the putnidar or his agent, and that the receipt was afterwards completed by the signatures of the munduls, obtained on the 15th of Bysack, and this might well have satisfied the Collector that the notice had been in fact published previous to the 15th. That being so, and no injury to the plaintiff being at all made out, it appears to me that the ground set up is wholly insufficient to induce this Court to set aside the sale. It may be added as it appears in this particular case that the sale, instead of taking place on the 1st of Joisto, did not take place until the 3rd, and therefore even if we assume that the publication had taken place on the 15th, still the defaulter had two days more than is prescribed by the Regulation.

2. The appeal is dismissed with costs.


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