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Banga Chandra Nandi Vs. Tara Kinkar Pal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.291
AppellantBanga Chandra Nandi
RespondentTara Kinkar Pal
Cases ReferredHari Charan Singh v. Chandra Kumar Dey
Excerpt:
civil procedure code (act xiv of 1832), section 317 - civil procedure code (act v of 1903), section 66--bar of suit against certified purchaser buying benami--provision applicable to purchaser in execution of certificate under public demands recovery act--public demands recovery act (i of 1895), section 19 sub-section (2). - .....of section 19 of the said act.2. the application to such certificates of section 241 of the old code, in chapter xix of which both that section and section 317 find place, has been the subject of a number of conflicting decisions. thus, in umedali bhuya v. rajlakshmi debya 1 c.l.j. 538 : 10 c.w.n. 130 : 33 c. 84, brett and woodroffe, jj., held that section 244 was applicable; whereas in raghubans sahai v. ful kumari 1 c.l.j. 542 : 32 c. 1130, harington and mookerjee, jj., ruled that it was inapplicable. but as regards section 317 there is, so far as i know, only one reported case, namely, that of ambica prosad v. gopal baksh das 1 c.l.j. 550, in which banerjee and rampini, jj., expressed an opinion against the applicability of the provision. that opinion, however, was really an obiter.....
Judgment:

Carnduff, J.

1. The short point raised by this appeal is as to whether the provisions of Section 317 of the Code of Civil Procedure 1882, which correspond with those of Section 63 of the Code of 1908, and bar a suit against a certified purchaser buying benami at a sale in execution of a decree, apply to the case of a purchaser at a sale in enforcement and execution of a certificate issued under the Public Demands Recovery Act, 1895, (Bengal Act I of 1895), by virtue of Sub-section (2) of Section 19 of the said Act.

2. The application to such certificates of Section 241 of the old Code, in Chapter XIX of which both that section and Section 317 find place, has been the subject of a number of conflicting decisions. Thus, in Umedali Bhuya v. Rajlakshmi Debya 1 C.L.J. 538 : 10 C.W.N. 130 : 33 C. 84, Brett and Woodroffe, JJ., held that Section 244 was applicable; whereas in Raghubans Sahai v. Ful Kumari 1 C.L.J. 542 : 32 C. 1130, Harington and Mookerjee, JJ., ruled that it was inapplicable. But as regards Section 317 there is, so far as I know, only one reported case, namely, that of Ambica Prosad v. Gopal Baksh Das 1 C.L.J. 550, in which Banerjee and Rampini, JJ., expressed an opinion against the applicability of the provision. That opinion, however, was really an obiter dictum, the case having been decided on other grounds; and the learned Judges were then construing Sub-section (2) of Section 21 of the Public Demands Recovery Act of 1895, as it was enacted in the first instance when it ran as follows:

The procedure prescribed in Chapter XIX (with the exception of Section 310A) shall, so far as it is applicable, be the procedure followed in execution proceedings to enforce such certificate and realise the amount recoverable thereunder.

3. Section 19, Sub-section (2), which has, by Section 12 of the Bengal Public Demands Recovery (Amendment) Act 1897, (Bengal Act I of 1897), been made to take the place of the earlier provision, is, however, very differently expressed in these terms:

Such certificate may be enforced and executed in the manner provided by Chapter XIX of the Code of Civil Procedure for the enforcement and execution of decrees for money; and all the provisions of that Chapter, except Section 310A thereof, shall apply so far as they are applicable.

4. Now, the words of the present provision seem to me to be perfectly clear, and I would construe them exactly as they were construed by Woodroffe, J., in Hari Charan Singh v. Chandra Kumar Dey 34 C. 787 at p. 808 : 11 C.W.N. 745 : 5 C.L.J. 696. They begin by declaring that certificates are to be enforced and executed as if they were decrees for money under the Civil Procedure Code: and then they go on expressly to render applicable, so far as may be, all the sections--223 to 343--to be found in Chapter XIX of that Code, with one carefully specified exception. What we are now asked by the learned Vakil for the respondent to do is to qualify the latter part of the enactment by inserting the words for the enforcement and execution of a decree' after the words ' that Chapter,' or by adding after the word applicable' the words for the enforcement and execution of a decree ' I think that it is not open to us to do anything of the kind. It seems to me, indeed, that the only argument in favour of the respondent's view is that mentioned by the lower Appellate Court, namely, that, if Sub-section (2) of the new Section 19 be sufficient to draw all the provisions of Chapter XIX of the old Code, then the Dew Section 20, which explicitly applies Sections 311 and 313 of that Chapter, becomes superfluous. But that is an argument which, standing alone, seems to me to carry but litle weight; it is useful only as an additional argument where there are already others to be supported. For it is well known that the Legislature, sometimes, it may be, per incuriam, and sometimes, doubtless, pro majori cautela, not infrequently commits itself to redundant provisions; and, if the construction, which I have indicated, makes Section 20 of the amended Act superfluous, my reply is that the construction for which the learned Vakil for the respondent contends, reduces the latter part of Sub-section (2) of Section 19 to a similar superfluity. In other words, if the latter part of that sub-section is to be read as limited to such provisions only as bear upon enforcement and execution, then it carries the earlier part not a step farther.

5. In my view, the only limitation upon the application of any of the provisions (other than these of Section 310A) contained in Chapter XIX of the old Code is that imposed by the words 'so far as they are applicable,' and I can find nothing in Section 317 of that Code in any sense inapplicable to a purchase at a sale in execution of a certificate. On the contrary, its provisions are salutary and appropriate, and there is no difficulty whatever in applying them, mutatis mutandi, to purchasers at such sales.

6. The result is that the respondent's suit was, in my opinion, rightly dismissed by the original Court. This appeal must, therefore be allowed, the decree of the lower Appellate Court discharged, and that of the Court of first instance restored with costs throughout.

Chapman, J.

7. I agree.


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