1. This appeal has arisen out of a suit for the annulment of a decree obtained by the landlord defendants in a proceeding under Section 105, Ben. Ten. Act, for enhancement of rent of a permanent tenure and for an injunction restraining the defendants from enforcing the certificate issued in execution of that decree. It is alleged that the tenure was purchased by the plaintiff some two years before these proceedings and that the plaintiff was fraudulently not made a party to the proceedings and, consequently the defendants obtained a decree for enhancement of rent and the subsequent certificate. The suit was decreed by the trial Court but was dismissed by the Court of Appeal below on the ground that the suit was barred under the provisions of Section 34, Public Demands Recovery Act, and secondly, was not maintainable because the heirs of defendant 3 were not made parties to the suit. The first point depends upon the interpretation of Section 34, Public Demands Recovery Act, which states that:
The certificate debtor may, at any time within six months
(1) from the service upon him of the notice required by Section 7, or
(2) if he files, in accordance with Section 9, a petition denying liability-from the date of the determination of the petition, or
(3) if he appeals, in accordance with Section 51, from an order passed under Section 10 - from the data of the decision of such appeal,
bring a suit in a Civil Court to have the certificate cancelled or modified and for any further: consequential relief to which he may be entitled.
2. The learned Additional District Judge holds that this Section must be interpreted to mean that if the certificate debtor has filed a petition under Section 9 he cannot bring a suit until after the date of determination of that petition. On a careful consideration of the terms of the Section read with Section 37 of the Act, I think that the learned Additional District Judge is right in his construction for the reasons he has given and therefore the suit is premature. The certificate debtor was not entitled to bring the suit under Section 34 of the Act, until after the decision of the certificate officer under Section 10. But by the terms of Section 37 the certificate debtor where fraud is alleged is not limited to a suit under Section 34 of the Act but can bring a suit independently of its provisions. In this case fraud was alleged and on the findings of the Court below fraud has been found, in that it has been found by the trial Court on good grounds that defendants 1 and 2 deliberately omitted to make the plaintiff a party to the suit and thus, having got a decree for enhancement of the rent of his holding in his absence, proceeded to execute the certificate against him. This finding has not been reversed by the Appellate Court and I accept it. The certificate debtor is therefore not bound by the provisions of Section 34 in bringing this suit. However the Appellate Court is right in holding that the decree cannot be set aside in the absence of the heirs of defendant 3 and as long as the decree stands, the rent of the holding must remain at the enhanced rate. The certificate is accordingly a valid certificate and an injunction cannot be issued to prevent the defendant executing it.
3. The appeal must therefore be dismissed. This is a most unfortunate result arising out of the failure of the plaintiff to make the heirs of defendant 3 parties to the suit. It will however still be open to the plaintiff to have the certificate cancelled in the proceedings under Section 10 of the Act, if these proceedings are still pending. In the circumstances I think the respondents should get no costs throughout and the orders of the Courts below as regards costs will be modified accordingly. Leave to appeal under the Letters Patent is granted.