Thittar Jha And Anr. vs Ramdhari Chowdhury on 3 August, 1909

Calcutta High Court
Thittar Jha And Anr. vs Ramdhari Chowdhury on 3 August, 1909
Equivalent citations: 3 Ind Cas 81
Bench: Stephen, Chatterjee


1. The first point which we have to consider is whether the certificate is, as is alleged by the appellants bad in itself. After setting out various matters, which were necessary that it should contain, it concludes as follows: “The certificate has to issue against all the maliks of the estate in the first instance. Afterwards realization may be made from Ramdhari or one of the substantial maliks.” Ramdhari is the plaintiff in the present case and he contends that this note makes void the whole certificate. It, appears to us, however, that it “has’ not that effect, Section 284 of the Code of Civil Procedure plainly allows execution to proceed against a part of the estate concerned and applies to the present case. The passage in question, therefore, is either a valid direction or else a mere surplusage. It is at all events not in any way inconsistent with the law and cannot be taken to invalidate the document.

2. In the second place we have to consider the effect of the petition made by the plaintiff in the suit on the 15th August in the same year, and to decide this we have to decide whether or not this petition was one under Section 12 of the Act. The Act gives the judgment-debtor the right to file a petition in certain circumstances, but he has to file it according to the form provided in the schedule to the Act, which sets out what the petition is to contain. The present petition is certainly not in the form indicated, but as we read it, it does contain the essential requisites provided for in the Form. There is a denial of liability, and a statement of the grounds on which liability is denied, there is also a prayer for retrial of the certificate on new evidence which implies a request that the certificate may be set aside, which is the last matter provided for in the Form. We hold’, therefore, that the petition in question is such a petition as is contemplated by Section 12. The result of this is that by force of Section 15 of the Act it was impossible at the date of this suit to bring any suit for the cancellation of the certificate, but the certificate remains absolute, which is to say, that no change can be made in its contents or in its force. The result of this is as though a decree had been’ passed and we take it that the certificate is a decree which it is not open to the plaintiff in the present suit, to have set aside.

3. There remains another question which is What, is the nature of the present suit? The present suit is not concerned with the certificate but it is concerned with the sale. The prayer of the plaintiff is that the sale may be declared improper and so forth and for;. possession of the property which has ‘been sold. Under these circumstances what is objected to is not so to speak the decree but the execution of it, and we must further consider whether the sale may be impugned. The reason which is suggested by the plaintiff-respondent for holding that it if. open to be impugned is that he never received any notice under Section 10 of the Act which he was entitled to receive on the granting of the certificate. On the evidence before us, we consider, that it in not proved, that he ever has received any such notice. We have before us the evidence of the peon who says that he served this notice. We cannot attach any importance to this because his evidence is unsupported by documentary evidence and we” have not before us the best evidence on the point, namely, the, receipt of the plaintiff in respect, of “–that notice which the peon says he gave. Under these circumstances we cannot place any reliance on the oral evidence as regards the service There remain three petitions by the plaintiff to the Certificate Officer, which same to recognize at all events the validity of the proceedings, but in none of these do we find anything which can be taken as a statement or even as an admission that notice has; in fact been served. Looking at the judgment in the case of Purna Chandra Choitopadhwya v. Dinobandhu Muhhopadhya 34 C. 811 (F.B.) : 5 C.L.J. 696 : 11 C.W.N. 756 : M.L.T. 371 we consider that there must be strict proof of this notice before the sale can. be held to be valid. We, therefore, hold that the service of notice in this case has not been strictly proved. This raises the farther question whether, this want of proof is an illegality or an irregularity. Dealing with this matter as though it were a civil suit it is as though the property had not been attached before sale in execution. In ordinary cases this might, by the decision in Malkargun v. Narhari 25 B. 337 (P.C.) : 27 I.A. 216 be treated as an irregularity. Looking at the decision in the Full Bench case above referred to we have no option but to treat it is an illegality and as making-the sale void and a complete nullity.

4. The result is that we agree with the result arrived at by the lower Court, though’ not precisely for the reasons which led that Court to that conclusion, and this appeal must be dismissed with costs.

5. But the plaintiff must payback the purchase-money with interest at 12 per cent, per annum from the date when the money was paid, and this money must be paid within two months from the arrival of the record in the lower Court.

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