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Kameshar Prosad and anr. Vs. Rajbuns Sahai - Court Judgment

LegalCrystal Citation
SubjectCivil;Banking
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal172
AppellantKameshar Prosad and anr.
RespondentRajbuns Sahai
Excerpt:
public demands recovery act (bengal act vii of 1880), section 8, clause (b) and section 12 - suit to set aside certificate and sale--limitation. - .....applied to the collector, apparently under the provisions of section 12 of the act, to have the certificate cancelled upon the ground that no arrears were due from him. an order was recorded on this application on the 28th february 1895, which may be taken to imply that the collector meant to hold that the plaintiff was liable to pay the arrears demanded. but, however that may be, the matter was again placed before the same authority on the 7th august 1895, when the order recorded was that, no evidence having been produced on behalf of the petitioner, the objection must be overruled. thereupon the' property, which had been attached in pursuance of the provisions of the act, was ordered to be sold, and the sale took place on the 10th august 1895. the present suit, however, was not.....
Judgment:

Ghose and Rampini, JJ.

1. This appeal arises out of a suit to set aside a certificate issued by the Collector under the provisions of the Public Demands Recovery Act (Bengal Act VII of 1880), and the sale which took place in execution of that certificate. It appears that the certificate in question was issued on the 12th November 1894, and notice was served upon the plaintiff in terms of Section 10 of the Act on the 12th December 1894. Subsequently, on the 9th January 1895, the plaintiff applied to the Collector, apparently under the provisions of Section 12 of the Act, to have the certificate cancelled upon the ground that no arrears were due from him. An order was recorded on this application on the 28th February 1895, which may be taken to imply that the Collector meant to hold that the plaintiff was liable to pay the arrears demanded. But, however that may be, the matter was again placed before the same authority on the 7th August 1895, when the order recorded was that, no evidence having been produced on behalf of the petitioner, the objection must be overruled. Thereupon the' property, which had been attached in pursuance of the provisions of the Act, was ordered to be sold, and the sale took place on the 10th August 1895. The present suit, however, was not instituted until the 8th August 1896, that is to say, within a year from the date of sale, but after a year from the date when notice under Section 10 of the Act was served upon the plaintiff.

2. The Munsif dismissed the suit. The learned District Judge on appeal has reversed the Munsif s decree, being of opinion that the certificate issued by the Collector was not in accordance with the form prescribed by the Act itself; that therefore it ought not to be treated as a decree under the provisions of the Act, and that necessarily the sale that took place in execution of it was a bad sale and should therefore be set aside.

3. It appears to us, however, that the plaintiff is not entitled to the remedy he seeks in this case, and for this simple reason: Referring to Section 8, Clause (6), of Bengal Act VII of 1880, it will be found that a 'judgment-debtor may at any time within one year after service upon him of such notice as is mentioned in Section 10 bring a suit in the Civil Court to contest his liability to pay the amount stated in the said certificate, and to have such certificate cancelled, but no such suit shall be entertained unless such judgment debtor has stated in a petition presented to the Collector under Section 12 the ground upon which he claims to have such certificate cancelled or unless, having omitted to state such ground in such petition as aforesaid, he can satisfy the Civil Court that there was good reason for such omission. If no such suit is instituted within the said period of one year, or if any such suit having been instituted is decided against such judgment-debtor, such certificate shall become absolute, and shall have, to all intents and purposes, the same force and effect as a final decree of a Civil Court.'

4. The law seems to us to be clear enough. It provides that if the judgment debtor desires to contest the propriety of the certificate served upon him under Section 10 of the Act, he must bring a suit for that purpose within a year from the date of the service of such certificate; but if he fails to do so, the certificate shall have the force and effect of a final decree of a Civil Court. In the present case the plaintiff did not bring his suit to have the certificate cancelled within a year as provided in Clause (b), Section 8, and therefore it seems to be obvious that it is not open to him to ask the Civil Court to determine any question as to the propriety or otherwise of the certificate.

5. The learned Vakil for the respondent, however, has contended that Section 8, Clause (b) should be read as controlled by Section 12 of the same Act, and that unless there be a determination as prescribed by that section, it is not incumbent on the judgment-debtor to bring a suit within a year from the date of service upon him of the certificate.

6. There are, we think, two answers to this argument: first, there was a determination of the matter that was placed before the Collector by the plaintiff on the two dates that we have already mentioned, namely, the 28th February and 7th August 1895. It may be that the Collector did not fully give his reasons for thinking that the arrear demanded was due by the plaintiff, but that would not make his order in any way less a determination of the matter that was before him upon the petition made by the plaintiff. We think that there was a determination in accordance with the requirements of Section 12. The second answer to the respondent's argument is this: Supposing that there was no determination in accordance with the provisions of Section 12, still the terms of Section 8, Clause (b) are peremptory, when it prescribes that, unless a suit is brought within a year from the date of service upon the judgment-debtor of the notice issued under Section 10, the certificate shall have the force and effect of a final decree of a Civil Court.

7. It appears to us that Section 8 is in no way controlled by the provisions of Section 12 of the Act. That being so, it seems to us that the adjudication of the matter which the plaintiff has asked for in the present case is barred by the provisions of Section 8, Clause (b) of Bengal Act VII of 1880. So far as the sale is concerned, it depends upon the question of the propriety of the certificate issued by the Collector on the 12th November 1894. If that certificate cannot be cancelled, the sale which was held in execution of it cannot equally be cancelled.

8. We set aside the order of the Lower Appellate Court and restore that of the Court of First Instance dismissing the suit of the plaintiff.

9. We make no order as to costs.


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