Beverley and Hill, JJ.
1. This was a suit for the cancellation of a deed of sale of certain immoveable property executed by the defendant to the plaintiff and for the recovery of the purchase money.
2. The defendant, it appears, was the owner of 152 bighas 3 cottahs and 10 gundas of lakhiraj land in mouzah Baradaha, and at the beginning of the year 1889 was in arrears in respect of the road cess assessed thereon to the amount of a sum of Rs. 41. On the 19th February 1889, a certificate for the recovery of those arrears was filed in the office of the Collector pursuant to the provisions of Bengal Act VII of 1880, and on the 3rd March this was followed by the issue of a notice from the Collector's office to the defendant under the provisions of Section 10 of the Act. On the 11th March the defendant conveyed to the plaintiff by a deed of sale of that date 38 bighas 9 1/2 cottahs out of this property for Rs. 166, and by the deed it was agreed, inter alia, 'that if the sale of the property hereby sold be not on any account valid, I' (that is, the defendant) 'shall pay back the whole of the consideration money with interest.' The purchase money was paid in due course, and on the 11th July 1889 the deed of sale was registered. On the 15th August the whole of the defendant's 152 bighas was sold under the certificate for a sum of Rs. 250 to a third party, to whom in due course a sale certificate was granted, and, on the 25th October following, the surplus proceeds of the sale, amounting after the deduction of the Government demand to Rs. 208-12-8, were withdrawn by the defendant from the Collectorate. The plaintiff, who is the appellant before us, contends that under these circumstances he is entitled to recover back from the defendant the sum of Rs. 166 paid by him as the consideration for the sale of the 11th March, and also to have that sale cancelled.
3. In the Court of First Instance, where the plaintiff obtained the relief sought, as well as in the Lower Appellate Court, he grounded his claim in a measure upon the alleged fraud of the defendant in concealing from him the circumstances of the property at the time of the sale. With this view of the case, however, we are not now concerned. The learned District Judge has found against the plaintiff on the issue of fraud, and the question of the effect of the certificate proceedings upon the competency of the defendant to dispose of his property to the plaintiff is the only matter which now arises for determination.
4. In reference to this question the learned Judge has found that the notice issued under Section 10 of Bengal Act VII of 1880 never came to the knowledge of the defendant, and that in other respects the service was defective; and that in consequence it was not sufficient in law to carry with it the effects flowing from an attachment when the order has been duly intimated to the judgment-dehtor under the provisions of Section 276* of the Code of Civil Procedure. He has accordingly held that the sale to the plaintiff was a good and valid sale, and has reversed the decree of the Court of First Instance in so far as it directed the cancellation of the sale and reduced the amount recoverable by the plaintiff to a share of the surplus proceeds of the Collectorate sale proportionate to his share of the property sold thereunder.
5. From this decree the plaintiff has appealed to this Court: and it has been urged on his behalf that the learned Judge was precluded by Section 8 of Bengal Act VII of 1868 from inquiring into the sufficiency of the service of the notice under Section 10 of the Act of 1880 upon the defendant, but was bound under the former section to treat the certificate of sale granted to the purchaser at the Collectorate sale as conclusive proof that that notice was duly served, and to find as a consequence that the plaintiff's purchase was void. It was further contended that the learned Judge ought, in any event, to have given the plaintiff a decree for an amount proportionate to his interest in the property in the gross sale proceeds of the Collectorate sale as distinguished from the surplus sale proceeds, the vendor being liable, under Section 55 of the Transfer of Property Act, to pay all public charges accrued due in respect of the property up to the date of the sale.
6. With the former of these contentions we are unable to agree. It is true that by Section 2 of the Act of 1880, it is provided that that Act shall, so far as is consistent with the tenor thereof, 'be construed as one with Act XI of 1859 and Bengal Act VII of 1868'. But the operation of Section 8 of the Act of 1868 is confined in express language to certificates of title given under Section 28 of Act XI of 1859 and Section 11 of the Act of 1868, while the certificate in the present instance was granted under the provisions of Section 19 of Bengal Act VII of 1880; in other words, under the Code of Civil Procedure, and however complete the union created between the enactments in question by Section 2 of the last-mentioned Act, we think an interpretation of that section which would extend the effect of Section 8 of the Act of 1868 to sale certificates granted under Section 19 of the Act of 1880, is not permissible.
7. In our opinion, therefore, it was open to the learned Judge to go into the question of the due service of the notice upon the defendant, and we agree with him in taking that it was not a good, service and that it was ineffectual in law to affect the validity of the sale to the plaintiff.
8. It comes to this, then, that the plaintiff's property was sold under the 'certificate proceedings' to a third party, and that the proceeds of the sale have found their way into the defendant's hands. The plaintiff has chosen to affirm that sale, and what he is in our opinion entitled to, is to recover from the defendant the proceeds of the sale which have come into the hands of the latter; that is to say, a sum bearing to the Rs. 250 realized by the sale of the whole property under the certificate the proportion borne by 38 bighas 9 1/2 cottahs to 152 bighas 3 cottahs and 1/2 chitback, and we decree accordingly. The liability for arrears of road cess was, in our opinion, personal to the defendant alone. Under all the circumstances of the case, we think it unnecessary to make any order as to costs.
* Private alienation of property after attachment to be void.
[Section 276.--When an attachment has been made by actual seizure or by written order duly intimated and made known in manner aforesaid, any private alienation of the property attached, whether by sale, gift, mortgage or otherwise, and any payment of the debt or dividend, or a delivery of the share, to the judgment debtor during the continuance of the attachment, shall be void as against all claims enforceable under the attachment.]