Bhawani Ojha And Anr. vs Ram Logan Ojha And Anr. on 23 July, 1886

Calcutta High Court
Bhawani Ojha And Anr. vs Ram Logan Ojha And Anr. on 23 July, 1886
Equivalent citations: (1887) ILR 14 Cal 9
Bench: Wilson, Porter


1. This is a suit brought substantially to set aside a sale of an undivided share in Mouzah Ismailpore, forming a part of a mehal which also includes other mouzahs. The plaintiff being one of the sharers in the mehal, his interests were sold for arrears of road cess; and he sues the purchaser and the other persons interested in the transaction.

2. The lower Court has given a decree in the plaintiff’s favour.

3. It is said, first, that such a suit will not, in any case, lie in a Civil Court; and the ground for that contention is that, in Bengal Act VII of 1880, Section 19, it is said that a certificate may be enforced and executed by all or any of the ways and means mentioned and provided in the Code of Civil Procedure for the enforcement and execution of decrees for money; and that all the practice and procedure provided by the Code of Civil Procedure in respect of sales in execution of decrees, and in various other matters enumerated, shall apply to every execution issued to enforce such certificate. It is said that the effect of that is to incorporate the whole of the enactments of Sections 311 and 312, and the following sections of the Code of Civil Procedure into the certificate procedure; and that therefore, if a judgment-debtor is desirous of objecting to a sale which has taken place, his remedy is to put in his objection in the Court of the Revenue Officer before the sale is confirmed, and then, if his claim be disallowed, to appeal to this Court against the disallowance of his claim; and that under Section 312 no civil suit will lie.

4. We are distinctly of opinion that that is not the effect of Section 19. Section 19 relates to the practice and procedure in respect of sales, that is, the practice and procedure of executing Courts in the carrying out of sales: and that that is the meaning of the section is rendered clear by the words which follow, giving a number of particular matters beyond the mere conduct of the sale to which such practice and procedure apply. That is, we think, the natural construction of the words; and it has been held to be the true construction by another Division Bench of this Court (Miiter and Norris, JJ.) in Sadhusaran Singh v. Panchdeo Lal 14 C. 1. The suit therefore will lie if the facts justify it.

5. It is unnecessary to inquire whether the effect of Section 2, Bengal Act VII of 1880, incorporating the provisions of Act VII of 1868, and at the same time amending it, was to give, in a case like the present, an appeal to the Commissioner. In the case already referred to, Mitter and Norris, JJ., answered that question in the affirmative. In this case it does nor, arise, because, rightly or wrongly, an appeal to the Commissioner was made. Nor is it necessary to inquire whether the provisions of Section 33 of Act XI of 1859 have any effect in a case of this kind ; and whether therefore it is a condition precedent to the filing of a suit; in a Civil Court that an appeal should be made to the Commissioner, because here such an appeal was made.

6. Then, again, no question of limitation arises in this case, because the appeal to the Commissioner did or did not lie. If it did lie, then it is clear that the plaintiff’s period of limitation would begin to run from the date of the Commissioner’s decision and the plaintiff is consequently in time. On the other hand, if the appeal to the Commissioner did not lie, then the plaintiff is in time for another reason, because under Section 14 of the Limitation Act the period during which the proceedings were pending before the Commissioner would have to be deducted. This disposes of the questions of law raised in the case.

7. As to the merits, we do not entertain the slightest hesitation in agreeing with the lower Court in the conclusion at which it has arrived. The subject-matter of the suit is a share in a mouzah, forming part of a mehal, in which there are a large number of shareholders. The certificate was made against Bhawani Ojha, one of the present plaintiffs “and others” Now, one or other of two things must be the case about that certificate. Either the words “and others” mean the other shareholders in the mehal, or else the certificate is an absolute nullity, because, on the face of it, it does not show against whom it is made. If it means the other shareholders, then it is a certificate against this man and his co-sharers; and, though it is drawn up in an unsatisfactory manner, we think that that is probably the true construction of the certificate. Taking it, therefore, that the certificate was made against Bhawani Ojha and the other shareholders of the mehal, what follows? A sale proclamation was issued in which the thing advertised for sale was the whole sixteen annas of the mehal, subject to the whole of the sudder jumma; and that was the only thing that could be sold. When the time for the sale came, however, what was sold was not the mehal, nor any part of the mehal, nor one or more of the mouzahs in the mehal, but the interest of a person entitled to a share in three out of the four mouzahs of the mehal. That, it appears to us, made the sale an absolute nullity. One thing was advertised for sale, and another was sold, so that in fact there was no sale proclamation at all. But even if that did not make the sale a nullity, and if it were necessary to inquire whether any damage had arisen by reason of the irregularity in the sale, there would be no doubt in the matter. There is necessarily grave damage in a case where an estate is liable to be sold, and is offered for sale, and then one shareholder is selected as a victim, and his property Only is sold for the debts of all the share-holders.

8. For these reasons we think that the decree of the lower Court is correct, and that the appeal must be dismissed with costs.

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