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Hara Prasad GaIn and ors. Vs. Gopal Chandra GaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal315
AppellantHara Prasad GaIn and ors.
RespondentGopal Chandra GaIn and ors.
Cases ReferredBaijnath Sahai v. Ramgut Singh
Excerpt:
- .....substantial injury by reason of irregularities. this suit having been brought to set aside a sale, held under the public demands recovery act, can only succeed and the sale set aside on the ground mentioned in section 23, namely, their there was a material irregularity which has caused substantial injury. if the sale is not liable to be set aside by the certificate officer without proof of material irregularity and consequent substantial injury, it cannot be set aside in a separate suit without such proof.11. an objection is also taken to the validity of the sale on the ground that in s.a. no. 2222 of 1923 one of the judgment-debtors had died after attachment but before the sale. it is contended that at any rate the share of that judgment-debtor is not affected by the sale. this.....
Judgment:

Suhrawardy, J.

1. These appeals arise out of a suit by the appellants for recovery of possession of one-half share of the plaint lands on declaration of their alleged title therein and setting aside the sales of the properties under the Public Demands Recovery Act (3 of 1913, B.C.). It will be necessary to mention a few dates in order to understand fully the contentions raised by the parties in these cases. The properties are four in number, and are described in Schedules ka, kha, ga and gha of the plaint. The Schedule ka. property was sold under a certificate issued by the certificate officer under the Public Demands Recovery Act and purchased by Defendant No. 1 on the 28tb October 1918. The sale was confirmed on the 3rd January 1919 and delivery of possession was given to the purchaser on the 23rd August 1919. The sale of 'kha' property was held on the 23rd December 1918 and confirmed on the 24th February 1919 and delivery of possession made to the purchasers, Defendants Nos. 2 and 3, on the 1st September 1919. 'Ga' property was sold on the 28th October 1918 and the sale was confirmed on the 3rd January 1919 and delivery made to the purchasers, Defendants Nos. 2 and 3, on the 1st November 1919. The sale of gha property was held on the 2nd December 1918 and confirmed on the 3rd February 1919 and delivery of possession given to the purchaser, Defendant No. 1, on the 1st September 1919.

2. The plaintiffs based their title on a mortgage executed by Defendants Nos. 5 to 15 who had an eight-annas share in the properties in favour of the plaintiffs in December 1903. A suit upon the mortgage was brought by the plaintiffs in 1917 and a decree for foreclosure was passed in favour of the plaintiffs on the 8th March 1919. The other eight annas share was also mortgaged by the owners thereof (to Defendant No. 1 who obtained a decree on it and in execution thereof purchased the property. It is not necessary to consider it as it is not in controversy in these cases.

3. The Subordinate Judge in the trial Court held that the sales were not liable to be set aside but as he found that they were vitiated by fraud he held that they were not binding on the plaintiffs and did not affect the plaintiff's eight-annas share in the property. The defendants appealed and the learned District Judge was of opinion that the plaintiffs had failed to prove fraud and that the sales were not liable to be safe aside on the ground of irregularities mentioned by the plaintiffs. In this view the learned Judge reversed the decision of the trial Court and dismissed the plaintiffs' suits. Against these decrees these appeals have been preferred by the plaintiffs and various grounds have been urged on their behalf which will be noticed in the course of the judgment.

4. It is argued, in the first place, that the principle of lis pendens should apply in the present case and it should be held that the purchasers in the certificate sales took the, properties subject to plaintiffs' mortgage decrees. This ground was not taken in the plaint or in any of the Courts below nor in the grounds of appeal presented to this Court. It was taken for the first time at the hearing and we have disallowed the plaintiffs' prayer to raise it at this stage of the case. I need not say further upon this matter.

5. It is next argued that the sales were void and illegal on the grounds : (1) that there was no proper certificate under the Public Demands Recovery Act in virtue of which the sales were held and secondly, that notice under Section 7 of the Act was not properly served. As to the first of these grounds the objection is that all the blank spaces in the form appended to the Act and the certificate under it, being Form No. 1 of the appendix to the Act, were not filled up. The columns of the tabular statement in that form were properly filled up but blanks in the certificate portion were not written up. The sentence runs thus:

I hereby certify that the above-mentioned sum of Rs.... is due to the above... from the defendants.... I further certify that the above-mentioned sum of Rs.... is justly recoverable and that its recovery by suit is not barred by law.

6. The ellipses in this form were not supplied and it is objected that due to this omission the certificate is not one which can be called a valid certificate under Sections 4 and 6 of the Public Demands Recovery Act. It appears from a perusal of the certificate filed in this case that the columns in the tabular form were properly filled up, namely, the name and address of the certificate-holder, the name and address of the certificate-debtors and the amount of public demand for which the certificate was signed were mentioned. The omission, therefore, to mention these names and the figures in a portion of the form cannot be taken to be material omission which would go to the length of invalidating the certificates. The idea underlying the filling up of the form is that the debtor should have information of the specific sum claimed from him and the particulars thereof. In the certificate, as it stands, all the necessary information is given. In this connexion reference has been made to the case of Syed Mohiuddin v. Pirthi Chand Lal [1915] 19 C.W.N. 1159. There the facts were very different and the learned Judges on these facts were justified in holding that the certificate was not a valid one under the law. In that case, as here, blank spaces under the tabular statement were not filled up and in the columns of the table the amount recoverable from the debtors was not correctly stated. Under column where the amount of public due for which certificate is signed has to be put, the sum mentioned was different from the amount put in column 5 which requires particulars of the public demand to be inserted. The debtors, therefore, it was rightly assumed, were not in a position to ascertain as to what was the actual amount demanded from them. On these facts the learned Judge3 rightly remarked:

It is consequently impossible to say to what precise figure in the tabular statement reference was intended to be made by the expression 'the above-mentioned sum of Rs....' in the certificate.

7. No such doubt with regard to the precise figure of the amount recoverable from the debtors exists in the present case. The 'above-mentioned sum of Rs....' was the sum mentioned in column 4 and there can be no doubt about it. I am accordingly of opinion that the certificate cannot be held to be invalid on the ground that the blank spaces were not filled up before it was signed by the certificate officer.

8. As to the other ground with regard to the non-service of notice under Section 7 of the Act, it has been found by the Courts below that notice was served. But the objection on behalf of the appellants rests on the informal nature of the notice. The notice bears the lithographic signature of the certificate officer. It is argued that it is not signed by the certificate officer as required by form No. 3 of the Appendix to the Act read with Section 7 of the Act. I have not been able to discover any law under which it is incumbent on the certificate officer to sign the notice with his own hand. In Section 2(20) of the Civil Procedure Code 'signed' is defined save in case of a judgment or decree, as including 'stamped.' A notice is neither a judgment nor a decree. This objection with regard to the facsimile signature of the certificate officer would have been effective in case of a certificate which has the force of a decree. But under the ordinary law of procedure a notice may be and is generally signed with stamped signature. This objection also fails.

9. Several irregularities have been pointed out in the procedure adopted in connexion with the sale before the certificate officer which, it is contended, would make the sale liable to be set aside. It is pointed oat that notices were not served under Rule 46(2) of the rules framed by the Local Government under the Act. that sub-rule says that the proclamation of sale shall be drawn up after notice to the certificate-debtor. This notice, in is argued, was not served and therefore the sale should be held to be bad. In my opinion this is a mere irregularity which it is not proved has caused injury to any party. It is also stated that under Rule 46(4), the sale-proclamation should state that the holding should be sold with power to annul all encumbrances, and as this statement is wanting in the sale-proclamation the sale is not one under the law. This objection, if there is any force in it, is available to the purchaser; but it does not lie in the mouth of the debtor or his representative to take exception to the validity of the sale on this ground. It may be mentioned here that the properties are occupancy holdings under the Government khas mehal. Under the tenancy law the purchaser of an occupancy holding sold for arrears of rent takes it with certain defined rights, the omission to mention which cannot invalidate the sale.

10. Then it is argued that the sale-proclamation was not published at the local thana under Rule 47(3). This omission too is not fatal to the sale. Even if these irregularities are taken to be material irregularities, they must be such as to cause injury to the debtor. The plaintiffs' case is that the properties were sold at an inadequate price. But none of the Courts below has held that this inadequacy of price was due to any of these irregularities or that the inadequacy is such as to raise a presumption to that effect. After the sales the plaintiff applied under Section 23 of the Act to have the sales set aside on the ground of these irregularities and the application was dismissed. that section provides that a sale may be set aside on the application of any person whose interests are affected by the sale on the ground that notice was not served under Section 7 or on the ground of irregularity in the certificate proceedings or in publishing or conducting the sale, provided that no such sale shall be set aside on any such ground, unless the certificate officer is satisfied that the applicant has sustained substantial injury by reason of irregularities. This suit having been brought to set aside a sale, held under the Public Demands Recovery Act, can only succeed and the sale set aside on the ground mentioned in Section 23, namely, their there was a material irregularity which has caused substantial injury. If the sale is not liable to be set aside by the certificate officer without proof of material irregularity and consequent substantial injury, it cannot be set aside in a separate suit without such proof.

11. An objection is also taken to the validity of the sale on the ground that in S.A. No. 2222 of 1923 one of the judgment-debtors had died after attachment but before the sale. It is contended that at any rate the share of that judgment-debtor is not affected by the sale. This objection also should not prevail. It has been held in the cases of Sheo Pershad v. Hiralal [1889] 12 All. 440 and Net hall Sahoo v. Sheikh Kareem Bux [1896] 23 Cal. 686 that the death of a judgment-debtor after attachment of the property and before sale does not necessarily invalidate the sale; and it has been pointed out in Bepin Behary v. Sasi Bhusan [1913] 18 C.L.J. 628 that such a sale is good unless appropriate steps are taken to have it set aside.

12. The next question, which is of some importance in this case, is as to the nature of the suit brought by the plaintiffs. The plaint, as it stands, seeks to recover possession of the properties after setting aside the certificate sales. The prayers in the plaint are to the following effect: - (ka.) After setting aside the sales the plaintiffs may be given possession of their eight-annas share after declaration of their title thereto; (kha) the certificates and the sales held by the certificate officer of Contai in the following cases (Nos... ) ware fraudulent and collusive; and the processes not having been served in the mofussil the sales may be held as not binding on the plaintiffs; (ga) that it may be held that Defendants Nos. 1 to 3 have acquired no right under these sales and a decree may be passes against them. The other two prayers are in respect of costs of the suit and mesne profits. The suit, as made out in the plaint, is one for setting aside the sales on the ground of fraud and also on the ground of irregularities pointed out therein. It therefore comes within the ambit of Section 37 of the Act. that section says that all matters relating to execution, discharge or satisfaction of a certificate should be determined by the certificate officer; and that a suit may be brought in a civil Court in respect of any such question on the ground of fraud. This section is analogous to Section 47, Civil P.C., Matters relating to execution of the certificate must be determined by the certificate officer who answers to the executing Court within the meaning of Section 47, Civil P.C., A suit in the civil Court will only lie on the ground of fraud and not on the ground of irregularities in the conduct of the sale. It having been found by the lower appellate Court, which finding of fact we are unable to disturb, that the plaintiffs failed to prove any fraud, the plaintiffs' suit must necessarily fail, as in the absence of fraud it is taken out of Section 37 of the Act, and the rest of the questions can only be determined by the certificate officer. Reference in this connexion may be made to the case of Basanta Kumar Pal v. Harendra Nath Mukhopadhya A.I.R. 1926 Cal. 107. The next question that arises in this connexion is whether the plaintiffs are representatives of the certificate-debtors within the meaning of Section 37 of the Act. It has been found by the learned District Judge that the certificates were issued against the tenants who were recorded in the settlement record and they were the persons recorded as tenants in the landlord's sherista. On these facts the learned Judge has held that the certificates that were issued against the recorded tenants had the effect of rent decrees and therefore the plaintiffs must be taken to be bound by them as representatives of the debtors. It is further to be noted in this connexion that the defendants became purchasers of the shares of these holdings after the certificate sales and even after the confirmation of the sales. There can, therefore, be no doubt that if the sales were good as against the Defendants Nos. 5 to 15, they were binding upon the plaintiffs also. On the above considerations it is clear that the suit is one by its constitution and scope under Section 37 of the Act, and as the plaintiffs have failed to prove fraud it is liable to be dismissed.

13. The learned Judge has also taken the view that the suit is barred by limitation. If I could have agreed with the view taken by the learned Judge on the ground of limitation it would not have been necessary to go into the other matters. But it seems to me that the view taken by the learned Judge is not on the authorities correct. The learned Judge holds that the suit is barred under Article 12 of the Limitation Act. There can be no doubt that that article is applicable. It says that a suit to safe. aside a sale such as a sale under the Public Demands Recovery Act must be brought within one year from the date when the sale is confirmed or otherwise becomes final and conclusive. The question therefore is, When did the sales become final and conclusive? By the use of the word 'otherwise' in the third column it is meant that the time runs from the date when the sale is confirmed and takes effect as conclusive or when it otherwise becomes final and conclusive. The starting date therefore for limitation should be the date on which the sale has become final and conclusive and cannot be disturbed by any of the means provided in the law of procedure except by means of a suit to which the article is held to apply. In the present case we find that the sales were confirmed on the 3rd January, 3rd February and 24th February 1919.

14. The suit was brought on 3rd June 1921, Apparently it was brought more then one year after the confirmation of the sale. But it appears that an application was made to the certificate officer to set aside the sales and it succeeded. The sales were set aside on the 19th April 1920. An appeal was taken from this order to the Collector who set it aside and restored the sales on the 18th May 1920. There was a further application for review before the Commissioner but as there are no proper materials on the record to find out the date on which that application was dismissed, it cannot be referred to in this connexion. The fact that appears on the evidence is that the sale was set aside in April 1920 and that no suit to set aside the sale could have been brought till the sale was again confirmed in May 1920.

15. The present case is governed by the decision of their Lordships of the Judicial Committee in the case of Baijnath Sahai v. Ramgut Singh [1896] 23 Cal. 775. In that case similar circumstances existed and the sale which was set aside at one stage of the proceedings in the revenue Courts was finally confirmed by the Board of Revenue. Their Lordships held that time under Article 12, Limitation Act, should run from the date of the final confirmation of the sale. In fact there is enough indication in the judgment of the Judicial Committee in support of the view that so long as the sale is under consideration of the revenue authorities, it cannot be said to have been confirmed and become final and conclusive. The date from which time is to be counted under Article 12 must be the date on which the sale is confirmed and has also become final and conclusive. If time is counted from the 18th May 1920 when the order of the certificate officer setting aside the sale was reversed by the Collector and the sale restored, which must be the date on which it can be said that the sale was confirmed and acquired its conclusive character, the plaintiffs' suit is within time, if allowance is made for the period occupied in serving notice on the Secretary of State under Section 80, Civil P.C., as is provided for in Section 15(2), Limitation Act. In this connexion the principle which should govern the case where such circumstances exist is also indicated in the decision in the case of Nrityamoni Dassi v. Lakhan Chandra Das [1916] 43 Cal. 660. It may also be argued with sufficient force that when a sale is once set aside, it ceases to exist and the cause of action which accrued at its confirmation also ceases to exist and if it is again confirmed by the appellate authority it must be taken that confirmation should date from the judgment of such authority. It is also worthy of note that Section 9 of the Limitation Act has not been extended to proceedings under the Public Demands Recovery Act. In this view I hold that the suit is not barred by limitation. But in the view that I have taken on the merits of the case it must fail.

16. One other submission is made which requires notice. It was suggested that the plaintiffs at any rate are entitled to relief under the Bengal Tenancy Act as their interest in the properties is an encumbrance within the meaning of Section 161, Bengal Tenancy Act and as it has not been avoided, a decree should be made in their favour in respect of their mortgage or purchase of eight annas share in the property. As I have said, the suit is not framed in such a way as to give the plaintiffs any relief under this head. The suit is purely and simply one under the Public Demands Recovery Act and no further relief was prayed for by the plaintiffs in the suit nor can it be given to them in the present state of the pleadings. This question was raised before the Subordinate Judge but as he was of opinion that the sale was liable to be set aside on the ground of fraud, he did not enter any finding upon it. There is no indication that this point was taken before the Court of first appeal. But it may be argued on the other hand that as the plaintiffs were respondents they had no opportunity of taking it before that Court. Be that as it may, this question is foreign to the present suit and cannot be determined in it

17. The result of the above consideration is that these appeals fail and must be dismissed with costs. The Secretary of State should get separate costs.

Graham, J.

18. (After setting out the facts his Lordship proceeded.) With regard to the first contention, viz., lis pendens it may be observed that this point was never raised in the pleading, no issue was consequently framed thereon; nor has it been even included in the numerous grounds of appeal taken in this Court. Furthermore we are informed that notice was served upon the respondents shortly before the date fixed for hearing this appeal of a new ground of appeal, and at that late stage the question of lis pendens was not raised. In these circumstance I do not think that this ground aught now to be allowed to be entertained.

19. The second point relays to the alleged irregularities in connexion with the (certificate sales. It does not appear to have been made clear at any stage of the case whether the plaintiffs, who sought to set aside the certificate sales, relied upon Section 36 or Section 37 of the Public Demands Recovery Act. Section 36 apparently has no application, as if; is confined to a suit to sat aside such a sale on the ground of nonservice of notice. that is not the case here and it has been found as a fast that notice was served. The learned advocate for the appellants has conceded that Section 36 does not apply. He has argued that Section 37 is equally inapplicable, and that the plaintiffs base their suit upon their paramount title and come under the general law quite irrespective of the Public Demands Recovery Act. Such a position cannot, in my opinion, to maintained. Where a special procedure is provided by a special Act for setting aside such sales, it seems to me that that procedure must be complied with. Section 37 refers to certificate-debtors, or their representatives, and the plaintiffs must, I think, be held to come within the latter category. The proviso to the section says

that a suit may be brought in a civil Court in respect of any such question (setting aside a sale being included) upon the ground of fraud.

20. The plaintiffs alleged fraud in their plaint, but the finding upon this point in the Go art of appeal below is against them, and the learned advocate, who appeared on their behalf in this appeal, vary properly intimated that he did not challenge that finding. that being so, it appears to me that, the allegation of fraud having been negatived the suit under the provisions of the Public Demands Recovery Act must be held to have failed Basanta Kumar Pal v. Harendra Nath Mukhopadhya A.I.R. 1926 Cal. 107. I may mention here incidentally that though the plaintiffs-appellants disclaim any reliance upon the above-mentioned Act, and seek to base their claim upon what is termed their paramount right under the general law, they did, at an earlier stage of the proceedings, make an application under Section 23 of the Act, and in so doing may be said to have tacitly recognized that it was incumbent upon them to proceed under the Act. The case of superior right now set up was never made in their plaint, nor indeed can it be Said to have been raised in the grounds in this appeal.

21. The third point is that the Court of appeal below erred in holding that the sales had the effect of a sale under a decree for arrears of rent, and were bind-ding on the plaintiffs. The learned District Judge has found that the certificates were issued against the recorded tenants and had therefore the effect of rent decrees. On behalf of the appellants reliance has been placed, as in the Court below, upon the entries made in previous certificates, but it is difficult to see how these entries can prevail over the settlement record. these entries may moreover have been wrong, or again different persons may have been tenants at the time when these certificates were issued. In my opinion the decision of the Court below upon this point is right.

22. With regard to the fourth point the trial Court did not go into the question whether notices were served under Section 167 of the Bengal Tenancy Act, because in the view it took of the case a decision On the point was unnecessary. It has been argued that the Court of appeal below should have gone into this question, The argument, if substantiated, would necessitate a remand, but as the suit has been held to fail in connexion with the second point, no effect can be given to this contention.

23. Finally, there is the question of limitation with which my learned brother hag dealt in his judgment. On the authorities, including the of case Baijnath Sahai v. Ramgut Singh [1896] 23 Cal. 775 decided by their Lordships of the Privy Council, it would appear that the suit cannot be held to be barred by limitation.

24. The suit, however, viewed as a suit under the Public Demands Recovery Act, failed as already held above and the appeals must, therefore, be dismissed with costs.


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