1. The question raised in this appeal is whether the sale of the plaintiffs' interest in a certain property, held in execution of a certificate, was a nullity. The certificate was issued for arrears of cess against three persons, Brajendra Ray Chaudhury, Brajendra Chakraverty and Brindaban Chakraverty, the father of the plaintiffs. Brindaban died before the issue of the certificate. On receipt of the peon's report the plaintiffs were substituted by the certificate officer. They did not pay the demand. An objection under Section 9 of the Act was unsuccessful. The property was eventually brought to sale and purchased by the appellant. After all attempts to get the sale set aside by the revenue authorities had failed the present suit was brought. Before dealing with the point now at issue Mr. Das pointed out that the form of the decree is incorrect. The Munsif made a declaration that the certificate and the sale were nullities. It is not disputed by the respondents that the certificate and the sale are perfectly good so far as the interests of Brajendra Roy Chaudhury and Brajendra Chakraverty are concerned. The decree ought to have been limited to the share of the plaintiffs. It is not disputed that the certificate against Brindaban was a certificate against a dead man. There can be no question that a decree against a dead man is a nullity. The Courts below have held that similarly a certificate against a dead man is also a nullity. In support of the appeal Mr. Das contended firstly that a certificate does not have the force of a decree until after the disposal of an objection under Section 9, and secondly that, in view of the peculiar nature of the certificate procedure, the heirs of a deceased certificate debtor may be added as parties and the certificate will then bind them.
2. There is nothing in the present Act corresponding to Section 8 of Act 1 of 1895; but under Section 36 failure to serve the notice under Section 7 does not make the sale void. It necessarily follows therefore that a certificate has the effect of a decree before the issue of the notice. On the second point Mr. Das relied upon the definition of a certificate debtor in Section 3 of the Act, which is in these terms:
A certificate debtor means the person named as debtor in the certificate filed under this Act and includes any person whose name is substituted or added as debtor by the certificate officer.
3. Now, the certificate procedure is not the same in every respect as execution proceedings in the civil Courts. For example, under Section 10, the certificate officer may modify or set aside a certificate even though it has the effect of a decree. This of course would be quite impossible in an executing Court. Mr. Das contends that similarly a certificate officer may add as parties heirs of a debtor who died before the certificate was filed. The difficulty has now been got over by a new rule which was published in the Calcutta Gazette on 21st May 1936. That rule provides that when one or two or more certificate debtors is found to be dead before the certificate is filed under Section 1 or Section 6 the certificate officer may at any stage of the proceedings and on such terms as he thinks fit order the name of the deceased to be struck out and legal representatives of the deceased added as certificate debtors. Under the provisions of Sections 38, 39 and 40 of the Act, this rule shall have effect as if enacted in the body of the Act. This rule however was not in force at the time when the present plaintiffs were substituted for their deceased father. In my judgment a mere definition 'is not enough. There must be some provision in the Act for substitution. The certificate against Brindaban was a mere nullity. When the Act makes no provision for the substitution or addition of his heirs as certificate debtors the only course open to the certificate officer was to make a new certificate. The decrees of the Courts below will be modified: The plaintiffs will get a declaration that their interest has not been affected by the sale held in execution of the certificate and confirmation of their possession. With this modification the appeal is dismissed with costs.