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Gonesh Das Vs. Gunessar Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal789
AppellantGonesh Das
RespondentGunessar Singh
Cases ReferredMungul Pershad Dichit v. Grijakant Lahiri I.L.R.
Excerpt:
public demands recovery act (bengal act vii of 1880), section 2 - revenue court--sale under certificate--jurisdiction--limitation--appeal to commissioner for setting aside sale--suit to set aside sale--order of revenue court setting aside sale--powers of the civil court. - .....commissioner of patna dealt with the appeal. the objection had been taken that the appeal was barred by limitation. this had been met by a charge of fraud. the commissioner held that fraud would be an answer to such objection, and directed the collector to enquire and report as to the charge of fraud.9. the purchaser then applied to the board of revenue to reverse the order of the additional commissioner. although his appeal was confined to a complaint against the action of the commissioner, the board of revenue on the 9th of may 1895 set aside the certificate on the ground that the fine in respect of which it was issued was unjust.10. on the 4th of february 1896, the additional commissioner set aside the sale. he held that the sale was brought about fraudulently and without legal.....
Judgment:

Trevelyan and Banerjee, JJ.

1. In this case the learned Subordinate Judge of Mozufferpore has set aside a sale held in execution of a certificate for the recovery of public demands given under s. 5 of the Public Demands Recovery Act.

2. The decree has been made on the ground that the Revenue authorities have set aside the certificate and sale since the institution of this suit. The only question argued before us, and the only question which arises in this appeal is, whether under the circumstances the Commissioner of Patna had authority so to do.

3. The following are the only facts to which it is necessary for us to refer. The certificate is dated the 23rd of June 1893.

4. On the 9th of September 1893 the sale was held.

5. On the 5th of December 1893 possession was given to the purchaser by the Revenue authorities.

6. On the 2nd of January 1894 the proprietor preferred an appeal to the Commissioner of the Patna Division, alleging that he had no knowledge of any of the proceedings and asking him to set aside the sale.

7. On the 4th of December 1894 this suit was filed with the object of setting aside the sale.

8. On the 12th of December 1894 the additional Commissioner of Patna dealt with the appeal. The objection had been taken that the appeal was barred by limitation. This had been met by a charge of fraud. The Commissioner held that fraud would be an answer to such objection, and directed the Collector to enquire and report as to the charge of fraud.

9. The purchaser then applied to the Board of Revenue to reverse the order of the Additional Commissioner. Although his appeal was confined to a complaint against the action of the Commissioner, the Board of Revenue on the 9th of May 1895 set aside the certificate on the ground that the fine in respect of which it was issued was unjust.

10. On the 4th of February 1896, the Additional Commissioner set aside the sale. He held that the sale was brought about fraudulently and without legal justification, but curiously enough, although he came to this conclusion, he considered it unnecessary to hear the purchaser, who was the person against, whom he was making the order. This order, whatever may be our conclusion as to its validity, violates the elementary principle which is binding upon all persons who exercise judicial or quasi-judicial powers, namely, that an order should not be made against a man's interest without there being given to him an opportunity of being heard. This really concludes the facts which are necessary for our decision.

11. On the 15th of April 1896, the learned Subordinate Judge decreed this suit on the footing of the action taken by the Revenue authorities. We have to determine whether the action of those authorities was within their powers.

12. The plaintiff was entitled to proceed simultaneously in the Civil Court, and in the Revenue Courts. The more ample and easier remedy was available to him in the Revenue Courts. If the sale be validly set aside by the Revenue Courts a decree must follow in the suit.

13. The first question arises as to whether the appeal to the Commissioner could have been entertained by that officer.

14. This appeal could only have been made under Section 2 of Act VII (B.C.) of 1868. It has been contended that that section has no application to sales, under the Certificate Act, VII (B.C.) of 1880. This contention is concluded by the authority of the decision of a Division Bench of this Court in Sadhu-saran Singh v. Panchdeo Lall (1886) I.L.R. 14 Cal. 1 with which we see no reason to differ.

15. It has also been contended that Mr. Bolton had no jurisdiction to entertain the appeal as it was barred by limitation. In the view which we take of this question it is not necessary for us to determine whether the appeal was. barred by limitation. If we had to determine it we would have great difficulty in holding that it was not barred. But although we might hold that Mr. Bolton ought to have refused to entertain the appeal, yet we cannot hold that the question is one of jurisdiction, and that we can discuss the grounds of his finding.

16. It was in our opinion for Mr. Bolton, and for him alone, to construe the section and to determine whether the appeal was barred by limitation. We are not a Court of Appeal or Revision from his decision except in cases where the law allows the Civil Court to interfere. The law allows the Civil Court to reverse a sale under certain circumstances, but there is nothing in the law authorising a Civil Court to reverse the order of a Revenue Court which sets aside a sale. We cannot question his decision on this question of limitation any more than it would be possible for us in a suit to determine that a decree made in another suit was barred by limitation, and that the decree was therefore without jurisdiction. If authority were required for this last proposition, we would refer to the decision of a Division Bench of this Court---Mahomed Hossain v. Purundur Mahto (1885) I.L.R. 11 Cal. 287. The well known case of Mungul Pershad Dichit v. Grijakant Lahiri I.L.R. 8 Cal. 51: L. R. 8 I. A. 123: 11 C. L. R. 113 also supports the proposition that an erroneous decision on a question of limitation cannot be treated as invalid unless it be set aside in a way provided by law.

17. A similar reasoning would prevent our entertaining any objection to the Commissioner's order on the ground that he had not heard the purchaser. If the purchaser was aggrieved on this account, there is no doubt that. he could have found an appropriate remedy in the procedure of the Revenue Court; but whether that be so or not, we cannot treat as invalid an order made by the tribunal to which the Legislature has entrusted the power of making such order. We have no power to enquire into the circumstances under which the order was made or into the propriety of the order.

18. Having given this case our most careful consideration we are unable to disagree with the view taken by the Court below, and accordingly we dismiss the appeal with costs.


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