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Ananda Chandra Nandy and anr. Vs. Jhulon Singh and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1929Cal409
AppellantAnanda Chandra Nandy and anr.
RespondentJhulon Singh and ors.
Cases ReferredJogneswar Sikhdar v. Kailash Mandal A.I.R.
Excerpt:
- .....confer any right on them by virtue of any defect.9. there is a finding by the trial court that the sale certificate does not cover the entire property in suit. the subordinate judge has laid down the law correctly when he says that a misdescription in the sale proclamation cannot be a ground for holding that a property did not pass under it if it can be gathered from the surrounding facts and circumstances that there could not be any doubt as to what was actually sold, but the learned subordinate judge has not considered the evidence upon this point and the fact relating to it in full, inasmuch as he is of opinion that the view he has taken with regard to the invalidity of the sale is enough to dispose of the suit. as we are of opinion that the defendant is not entitled to resist the.....
Judgment:

Suhrawardy, J.

1. This appeal arises out of a suit for declaration of title to and recovery of khas possession of 4.66 acres of land described in the plaint. The plaintiffs are the purchasers at a sale held on 11th April 1921 under the Public Demands Recovery Act for arrears of rent, due to the Bhowal Raj Estate under the Court of Wards. The sale was confirmed on 14th June 1921, and it is alleged that delivery of possession of the land sold was given to the plaintiffs by the Collector on 26th July of the same year. The plaintiffs' ease was that the defendants had not parted with possession of the land and hence they instituted the present suit on 19th September 1923.

2. Both the Courts below have given effect to the defendants' plea that the processes under the Public Demands Recovery Act had not been regularly served They have held that it has hot been proved that the notice or a copy of the certificate was served on defendant 1, the tenant as required by Section 7 of the said Act, There are also findings to the effect that the processes relating to the sale of the property were not served on the defendant and the story of the delivery of possession to the plaintiffs in pursuance-of the sale is false. On these grounds the lower Courts have dismissed the plaintiffs' suit. The plaintiffs have thereupon preferred this appeal.

3. It has been contended before us on behalf of the plaintiffs-appellants that the Courts below are not right in allowing; the defendant to raise the plea as regards the non-service and the invalidity of the processes under the Public Demands Recovery Act. Both the Courts below have-considered this point and are of opinion that the defendant is entitled to challenge the validity of the sale under the Public Demands Recovery Act. The learned Subordinate Judge in the lower appellate Court has held that, inasmuch as the present suit was brought within, the period within which the defendant was entitled to bring a suit under the Public Demands Recovery Act to have the sale set aside, he is entitled to urge-by way of defence all the objections that he could have raised had he brought a suit under the said Act. This view, in our opinion, cannot be maintained. The Public Demands Recovery Act may generally be regarded as a Code in itself and it has laid down the procedure to be observed in effecting a sale under it. It is not contended in this case by the defendant that there were no arrears due from him or that the certificate prepared under Section 4 of the Act was not duly filed. All the objections that the defendant has taken in the present case relate to the-subsequent conduct of the person responsible for the service of the notice and the sale processes. It may be noted here that the plaintiffs are strangers and had nothing to do with the proceedings taken under the Public Demands Recovery Act

4. After a certificate is issued, it has to be-filed under Section 6 of the Act and thereafter notice of the certificate in the prescribed form is issued under Section 7. When the notice is served, there are several remedies provided for in the Act which may be availed of by the debtor to have the certificate set aside. It is necessary to refer only to a few of the sections of the Act to show what remedies are open to the debtor against a sale under a certificate under the Act and where those remedies stop. For our presents purpose, we will consider the remedies which come into existence after the sale of the property. Under Section 22, the sale may be set aside on deposit of the amount due. Under Section 23, the person whose property is sold may within a certain time apply by the certificate officer to set aside the sale on the ground of non-service of notice or on the ground of a material irregularity in the certificate proceedings or in publishing or conducting the sale. Section 24 gives the debtor the right to bring a suit in the civil Court to have only the certificate cancelled or modified and for any further consequential relief under certain limitations. Section 35 debars a civil Court from setting aside a certificate sale except on the ground that the amount stated in the certificate was actually paid or discharged, that no part of the amount stated in the certificate was due by the certificate-debtor and that in cases of non-payment of fines imposed or costs, etc. or fees adjudged by a Collector or a public officer under any law, the proceedings of such Collector or public, officer were not in substantial conformity with the provisions of such law. Section 36 is an important section to be considered in this connection. It provides that if the debtor has not applied to the Collector under Ss- 22 or 23 he may bring a suit in the civil Court within one year of delivery of possession to the purchaser to set aside the sale on the ground of non-service of notice under Section 7. But it is expressly laid down there that a sale of immovable property in execution of a certificate shall not be held to be void on the ground that the notice required by Section 7 has not been served.

5. Reading all these sections together, one cannot but come to the conclusion that a certificate sale can only be set aside by the civil Court on the grounds that there were no arrears of rent due for which the certificate was taken or that notice under Section 7 was not served if the suit is brought within the time fixed. It becomes further clear that all the remedies that have been provided for by the Public Demands Recovery Act must be sought after. The jurisdiction of the civil Court to take cognizance of cases for setting aside certificates or certificate sales has been limited by several provisions in the Act itself. Lastly comes-S. 37 which says that every question arising between the certificate holder and the certificate debtor or their representatives relating to execution etc, of a certificate duly filed under this Act or relating to the confirmation or setting aside of a sale held in execution of such certificate-shall be determined not by suit but by order of the certificate officer. There is a proviso attached to the section that a suit may be brought in a civil Court in respect of any such question on the ground of fraud0. This limits the jurisdiction of the civil Court as between parties to the certificate in a suit for setting aside a certificate and virtually reduces it to a suit based upon fraud only. Now, the position in the present case is this The defendant when he came to know of the certificate and the sale there under had to seek remedies provided for by the Public Demands Recovery Act. It is found by the Subordinate Judge that the defendants' right to take proceedings under the said Act had not been extinguished by virtue of the application of Section 18, Limitation Act. But that does not seem to be a valid ground for holding that, because the defendants' right to sue subsisted on the date the present suit was brought, he had the right, without bringing such a suit, to raise objections against a certificate sale by way of de-fence. There is no authority either in the Statute law or in the case law in support of the view that it is open to the defendant to challenge the certificate sale by way of defence in a suit for possession brought by the purchaser. As already stated, the remedy of the certificate debtor is limited to the procedure indicated in the Act itself. We are not called upon in this case to consider whether a defence could be raised with regard to the invalidity of the sale on the ground that there was no money due from the certificate debtor at the time when the certificate was issued, nor are we called upon to consider whether it is competent to the defendant to raise the objections under Section 47, Civil P. C, in a civil Court sale or any similar enactment The Public Demands Recovery Act seems to us to vest the certificate officer with an exclusive jurisdiction to deal with questions relating to the publication of the certificate and the processes thereunder. The right of interference by the civil Court is limited to oases where there were no arrears due or non-service of notice under Section 7 or the whole proceedings are vitiated by fraud.It is not denied in this ease that arrears were due nor has it been contended that the certificate had not been duly filed. In these circumstances, to hold that it is open to the defendant to take by way of defence objections to the validity of the sale in a suit in the civil Court and that Court is competent to give effect to it, would be virtually to vest the civil Court with powers which are expressly denied to the civil Court.

6. The observations of the Judicial Committee in Govind Lal Roy v. Ramnjanam [1894] 21 Cal. 70 with reference to a sale for arrears of revenue oppositely apply to sale under the Public Demands Recovery Act. Their Lordships say that it is a sale held by the Collector or other officer authorized [to hold sales under the Act, although it [may be contrary to the provisions of the Act by reason of some irregularity in publishing or conducting the sale and that security of purchasers at sales for public demands should not be impaired.

7. Reference has been made in this connexion to some cases which have very little bearing on the point before us except an unreported case of this Court, Reajuddin Dalal v. Secretary of State Second Appeals Nos. 1718 and 2294 of 1918 and 14 of 1919, decided on 30th June 1920 In that case, it appears to have been held that a sale held under a certificate without notifying the date, time and place is liable to be set aside by a civil Court as the sale was in substance a colour able exercise of the powers conferred on the certificate officer by the Statute. There the certificate debtor was the plaintiff and it may be that the learned Judges who decided those cases thought that it was a case of fraud which same within the ambit of Section 37, Public Demands Recovery Act. It is not further clear that that was not a suit under Section 36 or any other section of the Act. Without admitting the correctness of the view expressed therein, we do not think that that decision is of any help to us for the determination of the question raised in this appeal, namely, whether the defendant can in a suit against him object in his defence to the certificate sale in the civil Court. The next case referred to is the case of Protap Chandra v. Secretary of State A.I.R. 1922 Cal. 101. In that case, it was held that the certificate itself was bad as Section 4, Public Demands Recovery Act, did not authorize the issue of more than one certificate in the prescribed form given in the appendix. In that case too, the certificate-debtor was the plaintiff. Some support to the view which has been taken by us in this case is to be found from the ratio of the decision given in the case of Jogneswar Sikhdar v. Kailash Mandal A.I.R. 1925 Cal. 8.

8. It is therein expressed that the defendant cannot in his defence be allowed to challenge a sale held by the civil Court inasmuch as he did not seek the remedy offered, to him by Order 21, Rule 90, Civil P.C. It may possibly be argued that where the sale is a nullity or void, the objection can be taken by a defendant by way of defence. But in the present case, no such question arises. The sale here is not void but is violable at the worst. It was open to the debtor to have proper proceedings taken before the proper tribunal. The defendant has not been able to show that the sale under which the plaintiffs claim did, not confer any right on them by virtue of any defect.

9. There is a finding by the trial Court that the sale certificate does not cover the entire property in suit. The Subordinate Judge has laid down the law correctly when he says that a misdescription in the sale proclamation cannot be a ground for holding that a property did not pass under it if it can be gathered from the surrounding facts and circumstances that there could not be any doubt as to what was actually sold, But the learned Subordinate Judge has not considered the evidence upon this point and the fact relating to it in full, inasmuch as he is of opinion that the view he has taken with regard to the invalidity of the sale is enough to dispose of the suit. As we are of opinion that the defendant is not entitled to resist the plaintiffs' claim on the grounds urged by him in his defence, the plaintiffs' suit must succeed. But we should like to see a definite finding by the Subordinate Judge on the point dealt with by the Munsif namely, whether the sale certificate covers the property in suit and, if it does, whether the whole of it or a part only.

10. The result, therefore, is that the appeal is allowed, the decree of the lower appellate Court is set aside and case is remitted to that Court for disposal after a clear finding as to whether the sale certificate Ex. 4 covers the land in suit or any portion thereof. The plaintiffs' suit will be decreed according to the finding arrived at upon this issue. If any portion of the land in suit is not found to be covered by the sale certificate, the plaintiffs' suit will be dismissed to that extent. The plaintiffs are entitled to their costs in this Court. Costs of the Courts below will abide the result.


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