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Chundhurry Maity and ors. Vs. Gobind Lall Seal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal172
AppellantChundhurry Maity and ors.
RespondentGobind Lall Seal and anr.
Cases ReferredHunooman Doss v. Bipro Churn Roy
Excerpt:
sale for arrears of rent - publication of notice of sale--material irregularity--reg. viii of 1819, section 8, clause 2. - .....decree must stand or fall is that relating to the service of the notice under section 8 of the patni regulation. the regulation requires that there shall be a threefold publication of the notice: a notice is to be published in the collector's office; a similar notice is to be stuck up at the sadr cutchery of the zamindari; and a copy or extract of such part of the notice as may apply to the individual case shall be sent by the zamindar to be similarly published at the cutchery or at the principal town or village upon the land of the defaulter. the regulation further provides that the notice to be sent to the mufassal shall be served by a single peon, who shall bring back the receipt of the defaulter or his manager for the same, or, in the event of inability to procure this, the.....
Judgment:

Tottenham, J.

1. This is an appeal against the decree of the Subordinate Judge of Midnapore, setting aside a patni sale on the ground of certain irregularities, which the Court below considered to have been established, and which it thought had been the cause of the patni being sold for an inadequate price.

2. As to the irregularities found by the lower Court, we think that there is only one with which we need deal. As to the others we doubt whether they should be held to be irregularities at all; and even if they are, we do not think that the plaintiff's, the patnidars, can be said to have sustained any injury therefrom. The material irregularity, however, upon which the lower Court's decree must stand or fall is that relating to the service of the notice under Section 8 of the Patni Regulation. The Regulation requires that there shall be a threefold publication of the notice: A notice is to be published in the Collector's office; a similar notice is to be stuck up at the Sadr Cutchery of the zamindari; and a copy or extract of such part of the notice as may apply to the individual case shall be sent by the zamindar to be similarly published at the cutchery or at the principal town or village upon the land of the defaulter. The Regulation further provides that the notice to be sent to the mufassal shall be served by a single peon, who shall bring back the receipt of the defaulter or his manager for the same, or, in the event of inability to procure this, the signatures of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot.

3. The dispute in the case relates to the notice which the law requires to be published on the spot,--that is, at the defaulter's cutchery.

4. The Court below has found it to be false that the notice was, as alleged, stuck up on the door of the cutchery.

5. The evidence shows that the service was accomplished by making the notice over to the karkoon of the defaulter in the absence of the defaulter himself and his naib. The karkoon admits having received it and having given a receipt for it. He also proves that, on the return of the naib, he made the notice over to him.

6. We have no doubt, therefore, upon the evidence, that the defaulter, or his manager, had notice of the intended sale of the patni for arrears; but the Court below holds that such service was not sufficient; and that, when the Regulation lays down that the notice shall be stuck up at the cutchery of the defaulter, or in some principal town or village upon his land, it is not sufficient to hand it over to one of his servants and take his receipt, that servant not being the manager of the defaulter.

7. Baboo Aushootosh Dhur, who appears for the appellants, admits that if the Regulation intended the local publication of the notice to be for the information of ryots and holders of under-tenures in the patni, then mere service of the notice on the defaulter's servant would be insufficient; but he contends that the Regulation does not contemplate any such publication as should inform the local public,--that is, the publication of the notice in the mufassal. He says, that the only information intended for the public is that to be gained from the notice suspended in the Collector's office and the zamindar's cutchery. He contends that the notice prescribed for the defaulter's cutchery is simply intended to convey information to the defaulter or his manager that the patni is in jeopardy.

8. We do not take the same view of the law. If the notice were only intended to convey private intimation to the defaulter or his agent, the law would hardly have used the term 'published.' To publish is, in our opinion, to make public,--that is, to convey information to the public or all whom it may concern.

9. There is one point which merits observation, although it has not been brought to our notice by the pleaders on either side; and it is this--that, in the notice issued by the zamindar to the defaulter, it is set out specifically that 'it is the duty of the peon, who is entrusted with this notice, to proceed first of all to the principal mauza or cutchery of the aforesaid lot, stick up the same and bring back the receipt, according to the form of the publication of this notice, from the taluqdar himself or from his naib, or any other agent.' It is quite clear, therefore, that the zamindar himself, or at any rate the person who prepared this notice for him, fully understood that the Regulation requires what we now hold to be its requirements. Baboo Aushootosh Dhur has referred us to the case of Hunooman Doss v. Bipro Churn Roy 20 W.R. 132 in which a Division Bench of this Court held, that when it was shown that the defaulter's cutchery was an empty and ruinous building, and the notice had therefore been served upon the gomashta's residence, where the business of the patnidar was actually carried on, such service was an infinitely more exact compliance with the spirit of the law, than service of the notice at the deserted cutchery would have been. The Judges in that case said that the object of the Regulation in this particular was to ensure the publication of the notice to the defaulter or his manager. The pleader, therefore, asks us to infer that the Regulation does not intend any such notice to any body else, and that personal service upon a servant is equal, not to say superior, to the mode of service prescribed in the Regulation,--that is, the sticking up of the notice on the cutchery. We need hardly say that we fully concur in the judgment pointed out to us so far as it goes. We fully agree that where the gomashta's house has practically taken the place of an old and dilapidated cutchery, publication at that house sufficiently meets the requirements of the Regulation. We also agree that the object of the Regulation in this particular is to ensure the publication of the notice to the defaulter or his agent. But we do not find that the Judges in that case said that this was the exclusive object. Had they said so, we should have felt compelled to disagree with them. In our opinion the object of the Regulation is also to make known to the holder of undertenures and ryots and the residents of the place generally that the patni will be sold if the arrears are not paid off within the time specified; and in the case cited we find that the notice was not merely served personally on the gomashta, and shut up by him in his box, but was, as prescribed by the Regulation, stuck up on the house. There is, therefore, nothing in that case which to our minds relaxes the rules laid down in Section 8 of the Regulation.

10. As observed before, Baboo Aushootosh Dhur has admitted that should we take the view we have just expressed of the object of the Regulation his case must fail. We have thus arrived at the result which he foreshadowed.

11. The appeal is dismissed with costs.


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