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Nandan Missir Vs. Lala Harakh Narayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.337
AppellantNandan Missir
RespondentLala Harakh Narayan and ors.
Cases Referred and Jogendra Mohan Sen v. Uma Nath Guha
Excerpt:
public demands recovery act (i of 1905 b.c.) - sale held under the act--certificate when no arrears--sale void--no necessity for having certificate cancelled--contract act (ix of 1872), sections 59 and 60--appropriation of payment--applicable to debt under public demands recovery act--amount paid for specified kist not to be appropriated to another. - .....statement of the general law, must apply. it may be laid down as a general proposition that a debt is a debt and liable to the incidents of the contract act except perhaps in exceptional cases, and one reason why the matter of land revenue may be possibly considered an exceptional case is this, that the land-holders under the law are practically not allowed to incur such debts. the moment they get into arrears, their lands are liable to be sold ipso facto. under the road-cess act, a debt has to be notified and the certificate has to be filed in the collector's office and a money decree has to be passed in the form of a certificate. now, there seems to be no reason why such a debt, evidenced by a money decree of a competent court, should be treated differently from any other debt and.....
Judgment:

1. This is an appeal in a suit ostensibly brought to set aside a certificate under the Public Demands Recovery Act and also to set aside a sale which was held under the certificate. The learned Judge of the Court, below, holding that the certificate was without jurisdiction and invalid, decided that the plaintiff WHS entitled to have it and all the subsequent proceedings set aside and in that view of the case he thought it was unnecessary to consider the other issues raised. Among the issues was one the decision of which would regulate the question of limitation under Section 15 of the Public Demands Recovery Act, That was the first issue, namely: 'whether the notice under Section 10 of the Public Demands Recovery Act was duly served?' We are asked, on appeal, to deal with the question of limitation and to remand the case to the lower Court for a decision on this issue. We do not think, if we can hold that the sale was bad and void from the beginning and that there was no necessity for the plaintiff to ask to have the certificate cancelled, that this question need be gone into. The case of Janakdhari Lal v. Gossain Lal Bhaya 1 Ind. Cas. 871 : 13 C.W.N. 710, although a converse case to the present one and differing from it in points which we shall notice presently, lays down what we consider to be the true principle both as applied to that case and as applicable to the present case. It was held in that case, on a review of the authorities, that when a sale has taken place on the basis of a satisfied decree, the satisfaction of which has been certified to the Court, the sale is void and ineffective to pass any title even to a bona fide purchaser for value without notice. In the Public Demands Recovery Act, Sections 10, 24 and 26 cast upon the certificate officer a duty to enter satisfaction as soon as payment, has been made of the amount for which certificate has been issued and authorises him to sell only so long as the certificate remains Unpaid. That was a case in which the amount for which the certificate was issued was two days later deposited in the treasury, but this was overlooked and notice under Section 10 of the Act was issued and served and immovable property belonging to the judgment-debtor sold and purchased by a stranger.

2. The present case is one where the arrears for which the certificate was issued had been paid on the 10th June 1905. On the 21st August 1905, it would appear that somebody informed the certificate officer that this money, that had to be paid, had not been paid and a notice was ordered to be issued returnable on the 14th September. This notice appears to have been served on the 31st August 1905, and, we may take it, was a notice under Section 10 of the Act. Time was given for objection till the 18th October 1905, and on the 18th October one Brijnandan Pershad Singh, who appears to be the lessee of the judgment debtor filed a petition of objection and stated that the demand had already been paid. The road-cess record-keeper reported that such payment had apparently been made, but said that it had been applied in satisfaction of some previous road-cess alleged to be due. Now, if, as we shall presently have to consider, this appropriation of the amount to a previous debt is illegal and void, it necessarily follows that there was no debt for June 1905, for which the certificate could be issued and there being no arrears and consequently no jurisdiction to make a decree, it would not be necessary to set that decree aside. Consequently Section 15 would have no application. In the case of Janakdhari Lal v. Gossain Lal Bhaya 1 Ind. Cas. 871 : 13 C.W.N. 710, Mr. Justice Mookerjee, in delivering the judgment of the Court, said that it was unnecessary to consider in that case whether if the plaintiff had two courses open to him, namely, by impugning the sale and by seeking to set aside the certificate, the remedy by way of suit within six months could be rightly treated as his exclusive remedy. But although we take it that it was unneceesary to decide that matter, he proceeded to cite authorities which tended to support the proposition that if circumstances are established which show that the sale has been held without jurisdiction, the sale cannot be rightly treated as one made under the provisions of the Act, and may consequently be challenged by a Civil suit without recourse to the procedure provided in the Act; in other words, in a case of this description, as there is no foundation for the exercise of jurisdiction by the revenue authority, the person injuriously affected is not deprived of his remedy by recourse to the ordinary law. Now these words are perfectly general and embody what we consider to be a sound view of the law and they are entirely in accord with the pronouncement of the Judicial Committee of the Privy Council. We do not think that we can do better than follow the principle which is laid down, and holding as we do that there was no foundation for the exercise of jurisdiction by the revenue authority in this case, we are unable to see that the plaintiff was precluded from having recourse to the Civil Court in the ordinary exercise of his Civil rights. That being so, the question of special limitation does not arise in this arise and the learned Judge of the Court below was not in error in deciding the case on its merits

3. We next, come to the contention of the appellant that the case was wrongly decided by the learned Judge on the merits inasmuch as the liability of an estate to pay arrears of land revenue has been held not to attract the laws regulating the relations of an ordinary creditor and debtor. But whatever view be taken of the conflict of authorities of this Court, in the cases of Ganga Bisnun Singh v. Mahomed Jan 33 C. 1193 : 10 C.W.N. 948 and Jogendra Mohan Sen v. Uma Nath Guha 35 C. 636 : 8 C.L.J. 41 : 12 C.W.N. 446, it appears to us clear that a debt under the Public Demands Recovery Act is nothing but a debt and the law as laid down in Sections 59 and 60 of the Contract Act, which is nothing more than a codified statement of the general law, must apply. It may be laid down as a general proposition that a debt is a debt and liable to the incidents of the Contract Act except perhaps in exceptional cases, and one reason why the matter of land revenue may be possibly considered an exceptional case is this, that the land-holders under the law are practically not allowed to incur such debts. The moment they get into arrears, their lands are liable to be sold ipso facto. Under the Road-Cess Act, a debt has to be notified and the certificate has to be filed in the Collector's office and a money decree has to be passed in the form of a certificate. Now, there seems to be no reason why such a debt, evidenced by a money decree of a competent Court, should be treated differently from any other debt and we cannot see that we should be justified in making any such distinction. We, therefore, think that Section 59 does apply to this case and that there was no authority on the part of the Collector to set off the amount said to be paid for June 1905 and to appropriate it to the earlier arrears found to be due. It, therefore, follows, not as the learned Judge finds, that the certificate must be set aside, but that the certificate having been made without jurisdiction. The sale was invalid and void and the plaintiff is entitled to have the sale set aside without it being necessary for him to have the certificate cancelled. We may add that, in out opinion, in ere is not the slightest case on the merits. A very valuable property was purchased in a speculative manner for Rs. 25 only and, as was laid down in the case to which we have referred above, the person who bought it for next to nothing cannot complain of any hardship when the sale is set aside. The present appellant did not even raise the plea of limitation which is merely a technical objection to the setting aside of the sale in his grounds of appeal. The Secretary of State on whose behalf this objection was originally taken does not appear.

4. The appeal is, therefore, dismissed with costs.

5. In this Court, the costs will be assessed at half the valuation given by the plaintiff, that is, Rs. 10,000, (Ten thousand rupees) because, firstly, no evidence was taken in the lower Court, and secondly, certain issues which were raised were not decided by the lower Court and it maybe that the appellant pro tanto was justified in coming to this Court for a further decision.


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