1. This is an appeal by the plaintiffs against a decision of the Additional District Judge of Hooghly, at Howrah, reversing a decision of the Additional Subordinate Judge of Howrha.
2. The suit out of which the appeal arises was brought by the plaintiffs for a declaration that a certificate issued under the Public Demands Recovery Act, 1895, to recover certain drainage costs under the Bengal Drainage Act, 1880, was invalid and that the substitution of the plaintiffs' names in place of the original obligee of the instalment bond, given under the provisions of the Bengal Drainage Act, was ultra vires.
3. The Subordinate Judge held that the certificate was issued without jurisdiction and that the substitution was ultra vires. The Additional District Judge has reversed this decision and hence this appeal. The facts are as follows: A certain drainage scheme, known as the Rajapur Drainage Scheme, was carried out in the year 1895 and under the provisions of the Bengal Drainage Act part of the costs were charged against Mouza Khasmara appertaining to patni Wadipur. The plaintiff's or their predecessors-in-interest were the zamindars at the date of the scheme and the patnidars were Pran Krishna Ghosh and Panchkari Ghosh, each having an 8 annas share.
4. Pran Krishna sold his share to Asutosh Ghosh and Arunodoy Ghose, and Panchkari's 8 annas share was let out in darpatni to four persons.
5. The darpatnidars were held liable for a portion of the drainage costs under Section 30 of the Act and they executed an instalment bond for the costs. In June 1900 the patni was sold under the Regulation of 1819 and purchased by Asutosh Ghosh.
6. The liability under the instalment bond being undischarged an attempt was made to make the purchaser of the patni liable. This failed as did subsequent attempts.
7. In May 1915 the present appellants purchased the patni under Regulation 8 of 1819, and in March 1916 the Collector issued a notice on the plaintiff's under Section 7 of the Public Demands Recovery Act to recover the sums due under the instalment bond and ultimately directed the substitution of their names and a certificate was issued.
8. Various points were raised and argued before us on behalf of the appellants, but we do not think that it is necessary to refer to them as the appeal, we think, must succeed on the ground that no notice was served upon the appellants in accordance with the provisions of Section 37 of the Bengal Drainage Act. The first Court has so found and the lower appellate Court has not reversed this finding but thinks that the service of notice is optional.
9. We think that this is not so and that the failure to serve the notice on the appellants vitiates the certificate proceedings' and that the appeal must succeed for this reason.
10. We accordingly allow the appeal and reverse the decision of the Additional District Judge and restore the decree of the Additional Subordinate Judge. The appellants will be entitled to their costs in this Court and in the lower appellate Court against the 1st respondent.