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Reaj-ud-dIn Dalal Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.759
AppellantReaj-ud-dIn Dalal;shahanutulla Mia and ors.
RespondentThe Secretary of State for India in Council;bhaby Mahmud Sarkar and ors.
Cases Referred and Surno Moyee Debi v. Ddkhina Banian Sanyal
Excerpt:
bengal public demands recovery act (iii of 1913 b.c.) section 37 - sale, holding of, without notifying date, time and place--suit for declaration that sale is a nullity, maintainability of. - .....mookerjee, acting c.j.1. this is an appeal by the defendant in a suit for declaration that a sale held under the public demands recovery act, 1913, on the 12th september, 1913 was a nullity. the courts below have decreed the suit.2. on the present appeal it has been contended that the suit is barred under the provisions of section 37 of the public demands recovery act. in our opinion, this contention cannot possibly be sustained, as, in the events which have happened, the sale cannot be regarded as a sale under the statute.3.it appears that a date had been fixed for the sale of the property, but no sale took place on that date. thereupon, on the 5th september 1913, the certificate officer pasted the following order: 'put up for sale, but no bid in court, nazir or naib-nazir to sell.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the defendant in a suit for declaration that a sale held under the Public Demands Recovery Act, 1913, on the 12th September, 1913 was a nullity. The Courts below have decreed the suit.

2. On the present appeal it has been contended that the suit is barred under the provisions of Section 37 of the Public Demands Recovery Act. In our opinion, this contention cannot possibly be sustained, as, in the events which have happened, the sale cannot be regarded as a sale under the Statute.

3.It appears that a date had been fixed for the sale of the property, but no sale took place on that date. Thereupon, on the 5th September 1913, the Certificate Officer pasted the following order: 'Put up for sale, but no bid in Court, Nazir or Naib-Nazir to sell locally within 12th September.' At the sale which actually took place on the 12th September, there were no bidder?, and the property in suit was sold along with five other properties for an aggregate sum of Bs. 55. The allegation of the plaintiffs is, that the particular property now in suit is worth at least Bs. 3,000. The appellant has contended that, although the stele was held in contravention of Rule 32 of the rules appended to the Public Demands recovery Act, 1913, the sale was a sale under the Statute and can be set aside only by the certificate Officer, and in support of this proposition he has referred to the sales of Tasadduk Basul Khan v. Ahmad Husain 21 C. 66 (P.C.) : 20 I.A. 176 : 17 Ind. Jur. 534 : 6 Sar. P.C.J. 324 : Rafique and Jakson;s P.C. No. 131 : 10 Ind. Dec. (N.S.) 676 and Surno Moyee Debi v. Ddkhina Banian Sanyal 24 C. 291 : 12 Ind. Dec. (N.S.) 816 These cases are clearly distinguishable. In the first case, the sale was held before the expiry of the 30 days which should intervene between the publication of the sale proclamation and the actual gale. In the second case, there was no hour1 fixed for the sale as required by the provisions of the civil Procedure Code. The preterit case, however, is very unlike the two cases mentioned. Here no date was fixed for the sale; no such was fixed for the sale, no place was fixed for the sale; for, although it was stated that the sale was to be held locally, this was meaningless, because the property to be sold was situated in six different places. Consequently, neither date, nor hour, nor place of sale was specified. Now, the Statute clearly contemplates a public action, that is to say, an action where members of the public will be in a position to offer bids in competition against each other. But if a sale is held, as was held in this case, without date, hour and place previously fixed it is clearly impossible for the public to attend and to bid. Under such circumstance, we cannot bold that this was a sale as contemplated by the Legislature; the sale was in substance a colorable exercise of the powers conferred on the Certificate Officer by the Statute. A sale of this description cannot be held to be a sale under the Statute, and Section 37 is consequently not a bar to the suit. If the suit is not barred, then it is conceded that on the facts proved and undisputed, the decree of the Court of Appeal below must be sustained. The appeal is consequently dismissed with costs. The other two appeals also are dismissed with costs.

Ernest Fletcher, J.

I agree.


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