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Shew Sahay Singh Vs. Mohibul Huq - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal85
AppellantShew Sahay Singh
RespondentMohibul Huq
Excerpt:
right of suit - suit to set aside sate for arrears of road and public cesses--appeal to commissioner--act xi of 1859, section 33--public demands recovery act (bengal act vii of 1880), section 2. - .....ix of 1880, 'by any process provided by any law for the time being in force for the realization of public demands;' and it is provided by that section that such arrears 'shall be deemed to be a public demand under such law.' the law under which public demands are recovered is bengal act vii of 1880, and under the provisions of that act, such demands are realized by the certificate procedure. section 19 of the act provides that a certificate under the act, 'may be enforced and executed by all or any of the ways and means mentioned and provided in and by the code of civil procedure for the enforcement and execution of decrees for money.'5. it thus appears that the sale in the present case for the realization of the arrears of cesses was not a sale for 'arrears of revenue and other demands.....
Judgment:

Trevelyan and Stevens, JJ.

1. This was a suit to set aside a sale for arrears of road and public work cesses on the ground that no notice had been served under Section 10 of Bengal Act VII of 1880, and that no sale proclamation had been published on the land, and that the property had been sold for a very inadequate price. The findings of fact arrived at by the Lower Appellate Court are in favour of the plaintiff.

2. The only question before us is whether such a suit would lie without a previous appeal to the Commissioner from the order of the Collector.

3. It has been contended that Section 33 of Act XI of 1859 applies to cases like the present. Section 2, Bengal Act VII of 1880, says: 'This Act, so far as is consistent with the tenor thereof, shall be construed as one with Act XI of 1859.'

4. We think that this contention is not correct. Arrears of road cess are recoverable under Section 98 of Bengal Act IX of 1880, 'by any process provided by any law for the time being in force for the realization of public demands;' and it is provided by that section that such arrears 'shall be deemed to be a public demand under such law.' The law under which public demands are recovered is Bengal Act VII of 1880, and under the provisions of that Act, such demands are realized by the certificate procedure. Section 19 of the Act provides that a certificate under the Act, 'may be enforced and executed by all or any of the ways and means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money.'

5. It thus appears that the sale in the present case for the realization of the arrears of cesses was not a sale for 'arrears of revenue and other demands realizable in the same manner as arrears of revenue are realizable' within the meaning of Section 33 of Act XI of 1859, and therefore the provisions of Section 33 can have no application to the sale with which we are concerned.

6. We therefore dismiss this appeal without costs, the respondent's pleader not being present.


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