Francis W. Maclean, K.C.I.E., C.J.
1. I think, though with some little doubt, that there must be a remand in this case to the Lower Appellate Court, for that Court either to take the evidence itself, or send the case to the first Court to do so, for the determination of the question whether the Collector issued to the judgment-debtor a copy of the certificate upon which the sale was based and notice in Form IV in the Second Schedule annexed to Act VII (B.C.) of 1880, in other words, to ascertain and determine whether the provisions of Section 10 of the Act were strictly and properly complied with. I direct this remand, because in my opinion the finding of the Court below is not quite so explicit as it ought to be, though I should rather infer from his language that it was the Judge's intention to find that the notice had not been duly served in accordance with the provisions of Section 10. If the Court should find that the provisions of Section 10 have not been complied with, then in my opinion the sale cannot stand, and I feel no difficulty in holding that the Civil Court has jurisdiction to entertain a suit to set aside the sale.
2. It was contended that there is no jurisdiction in the Civil Court to entertain a regular suit to set aside the sale, having regard to the provisions of Section 2 of Act VII (B.C.) of 1868, But that section only enables the Commissioner of Revenue to 'receive an appeal': it does not make it compulsory upon the judgment-debtor, who complains of the sale, to appeal to that tribunal, nor does it deprive him of his right to institute a regular suit to set aside the sale. If the case of Troyluckho Nath v. Pahar Khan (1896) I.L.R., 23 Cal., 641, decide the contrary, I respectfully differ from its conclusion, which appears to me to be inconsistent with the cases to which I am about to refer.
3. I am unable to accept the contention of the learned Senior Government Pleader for the Secretary of State, that a sale cannot be set aside until the certificate has been set aside, and that a certificate can only be set aside on some or one of the grounds stated in the Sub-section (b) of Section 8 of Act VII (B.C.) of 1880. That view appears to me to be inconsistent with the decision of the Privy Council in the case of Baij Nath Sahai v. Ramgut Singh (1896) I.L.R., 23 Cal., 775, with that in the case of Mahomed Abdul Hai v. Gujraj Sahai (1893) I.L.R., 20 Cal., 826, and with the decision to which I was myself a party in the case of Saroda Charan v. Kista Mohun (1897) 1 C.W.N., 516. The case of Baijnath Sahai v. Ramgut Singh (1896) I.L.R., 23 Cal., 775, indicates how important it is in cases of this class that the requisites preliminary to a sale should be strictly complied with. In neither of the Privy Council cases, to which I have referred, was it suggested that a regular suit would not lie to set aside the sale, or that the judgment-debtor 's only remedy was an appeal under Section 2 of Act VII (B.C.) of 1868. As regards the argument under Section 8 of Act VII (B.C.) of 1880, the plaintiff's case is that it is the sale and not the certificate he wants to have set aside, and he claims to have it set aside, on the ground that the provisions of Section 10 were not complied with, and that, until he was served with the notice under that section, the certificate did not bind his immoveable property, and that, as he was never served with such notice, his immoveable property never became bound by the certificate, and in this view he says it is immaterial to him whether or not the certificate is set aside, so long as the sale is. I do not think there is anything in Section 8 which prevents his instituting this suit. I may add that Section 8, which only refers to a suit to contest his liability to pay the amount stated in the certificate and to have the certificate cancelled, pre-supposes service under Section 10. I am unable, therefore, to accept the view of the law as laid down by the Lower Appellate Court, but, as the Secretary of State asks for it, there will be a remand on the point I have mentioned. The respondents, however, must pay the costs of this appeal.
4. I am of the same opinion. The plaintiff-appellants brought this suit to set aside the sale of the property in dispute under a certificate made under Act VII (B.C.) of 1880 on certain grounds, one of which was that no notice of the certificate had been issued to the plaintiffs. The Lower Appellate Court, while finding that no notice under Section 10 of the Act had been proved, has nevertheless dismissed the suit, as it is of opinion that the plaintiffs were not entitled to maintain the suit, because they did not make any application under Section 12 of the Public Demands' Recovery Act, and further because they failed to show, as required by Section 8 before any certificate could be set aside by the Civil Court, that the debt covered by the certificate was not really due, or that it had been paid or discharged.
5. The plaintiff-appellants contend that the Court of Appeal below is wrong in holding that the suit was not maintainable, and that it ought to have held that when no notice under Section 10 of Act VII (B.C.) of 1880 was proved, all proceedings had for the enforcement of the certificate were void; and in support of this contention the decision of the Privy Council in the case of Baijnath Sahai v. Ramgut Singh (1896) I.L.R., 23 Cal., 775, and the case of Saroda Charan v. Kista Mohun (1897) 1 C.W.N., 516, are relied upon.
6. The cases cited bear out the appellants' contention, and the only way in which the learned Senior Government Pleader attempts to meet that contention and to support the judgment of the Court below, is by arguing that Section 12 of the Public Demands Recovery Act contemplates the possibility of execution proceedings being taken, notwithstanding that no notice under Section 10 is duly served, and that Section 20 of the Act by implication shows that a sale of immoveable property can be set aside by the Civil Court only where the certificate is set aside by such Court, and as no cause has been made out for the setting aside of the certificate under Section 8 of the Act, the Courts below are right in holding that the suit cannot succeed.
7. Now with reference to Section 12 it will be enough to say that, although it contemplates the possibility of a debtor under a certificate applying to the Collector to set aside the certificate upon becoming aware of its existence not by a notice under Section 10, but by the issue of any process of execution, it does not show that notwithstanding the absence of a notice under Section 10, the certificate is as valid and has as much force, as if such notice had been issued. On the contrary, there are express provisions in the Act, in Sections 10 and 18, to the effect that a certificate binds the immoveable property of the debtor, and may be enforced as a decree only after service of the notice mentioned in Section 10. And there is every reason why that should be so, because the certificate is altogether an ex parte document; it only professes to certify that a certain debt is due, and it is only by the service of the notice under Section 10 that the party against whom the debt is certified to be due becomes aware of the existence of the certificate.
8. Then as for Section 20 all that section enacts is, that where a certificate is set aside by a competent Civil Court, the sale held in enforcement of the certificate shall also be set aside. But that does not prove that a sale of immoveable property held in enforcement of a certificate can be set aside only when the certificate is set aside. For there may be a class of cases, and an important class, of which the present is an instance, and of which the cases of Baijnath Sahai v. Ramgut Singh (1896) I.L.R., 23 Cal., 775, and Saroda Charan v. Kista Mohun (1897) 1 C.W.N., 516, are also instances in which a certificate may be made, and yet no notice given of it to the debtor as required by Section 10 of the Act, and, in any such case, if the property of the debtor is sold before he had any notice of the certificate against him, he may well 'although the debt is due and has not been paid off, and although, therefore, say, I am not in a position to have the certificate cancelled, yet I am entitled to have the sale of my property, held under such a certificate, cancelled for the simple reason that I never had any notice of the certificate, my creditor having no power under the Act, unless he complies with its provisions, to sell my property to realise his dues.' It is only after the notice under Section 10 is issued that the certificate acquires the force and effect of a decree which may be enforced and satisfied by the sale of the debtor's property.
9. It was lastly contended by the learned Senior Government Pleader that where a sale has been held in enforcement of a certificate, then, if the debtor is not in a position to have the certificate set aside, his proper remedy is to apply to the Commissioner for setting aside the sale. That may be so where the only ground for setting aside the sale is irregularity in publishing or conducting it. But where what is impugned is the authority of the Collector to hold the sale on the ground of there being no valid warrant for the sale in the form of a perfected certificate, that is, a certificate perfected by the issue of a notice under Section 10, which alone can give it the force of a decree, there, although there may be no irregularity in publication or the conduct of the sale, the sale should be set aside as having been made altogether without authority, and there the right of bringing a civil suit is not in my opinion taken away by any of the provisions of the Public Demands' Recovery Act. The view I take is, as I have said above, supported by the cases of Baijnath Sahai v. Ramgut Singh (1896) I.L.R., 23 Cal., 775, and Saroda, Charan v. Kista Mohun (1897) 1 C.W.N., 516.