Shekaat Hosain And Anr. vs Sasi Kar And Ors. on 10 May, 1892

Calcutta High Court
Shekaat Hosain And Anr. vs Sasi Kar And Ors. on 10 May, 1892
Equivalent citations: (1892) ILR 19 Cal 783
Author: P A Banerjee
Bench: Prinsep, Banerjee


Prinsep and Banerjee, JJ.

1. The plaintiffs claimed to be the proprietors of one-third share of a certain mahal, but not the recorded proprietors on the Collector’s register. They alleged that, in execution of a decree under the certificate procedure issued by the Collector against their vendor and donor, their share had been sold without any notice to them and in fraud of their title in consequence of the misconduct of defendant No. 1.

2. The suit has been dismissed by the Lower Appellate Court on the ground that the cesses were due from the particular property, and were properly realized by a decree, under the particular procedure known as the certificate procedure, against the recorded proprietor.

3. The only point laid before us in this appeal is whether such a sale would affect the rights of the plaintiffs who are admittedly not the recorded proprietors of this share. It is contended on one hand that cesses are only personal debts, and on the other, that they constitute a charge on the particular property belonging to the recorded proprietor.

4. We have no doubt that cesses are only a personal obligation on those who profess to be the proprietors of particular properties and who have admitted their liability by submitting to certain terms required by the Act. Section 10 of the Public Demands Recovery Act of 1880, under which the sale was held, declares that, on the filing of the certificate by the Collector in the manner specified, such certificate shall bind all immoveable property of the judgment-debtor situate within the jurisdiction of the said Collector in the same manner and with like effect as if such immoveable property had been attached under the provisions of Section 274 of the Code of Civil Procedure, and Section 19 declares that such certificate may be enforced and executed by all or any of the ways and means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money, so that any proceedings under the certificate procedure would be of the nature of proceedings in execution of decrees to recover personal debts. We would refer also to Sections 98 and 99 of Act IX (B.C.) of 1880, more particularly to Section 99, which relate to the course to be taken by the Collector if he fails to find any property belonging to the person from whom any sum on account of cesses is due. We think it unnecessary to refer to any further argument to show that the amount so due is only a personal debt and cannot properly be recovered from the property on which it is assessed, if it should so happen that that property belongs to a third person.

5. The order of the Lower Appellate Court is accordingly set aside, and the plaintiffs’ claim decreed with costs in this and the Lower Appellate Court.

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