Baikantha Nath Dutt vs Gunga Prosad Patnayak and others

This is an appeal against the decree of the District Judge of Cuttuck, dated the 23rd September 1897. The suit is one for setting aside a sale under Act XI of 1859 for arrears of Government revenue. There is no dispute as to the facts of the case, which are to the effect that the Plaintiffs are the owners of an estate in the District of Cuttack, and the last day for the payment of the April kist for 1893 was the 28th idem. On the 26th April the Plaintiffs remitted the land revenue by Revenue money-order through the Bhadruk Post Office. By mistake the Post Office sent the money on to Balasore.

The Balasore Collector refused to accept the money. It was afterwards sent to Cuttack, where it was received in the Collectorate on the 2nd of May, and an acknowledgment was sent to the Post Office marked "too late for kist."

The estate was advertised for arrears of revenue, and it was sold and bought by the Defendant who took possession on the 23rd December. No order for exemption under sec. 18 of Act XI of 1859 was recorded.

On these facts, which are beyond all dispute, the Subordinate Judge in whose Court the suit was instituted, held that the estate was in arrears, and was consequently sold in accordance with the law, and that the sale could not he set aside.

The District Judge, to whom the Plaintiff appealed, reversed the decision of the Subordinate Judge for the following reasons: He says:-- "I think I am quite justified in holding that where a zemindar has sent his revenue by money-order in sufficient time, and it does not arrive in due time for the kist, owing solely to gross negligence and mistake on the part of the Post Office, there is no arrear, and there can therefore be no sale for arrears under Act XI."

Now the Defendant appeals to this Court, and on his behalf it is urged that this view of the District Judge is incorrect and is not warranted by law.

In the first place, it is said, that there was an arrear of Government revenue, and, secondly, that the sale was validly held and, thirdly, that the payment to the Post Office was not a good payment to the Collector of Cuttack to whom the revenue was payable inasmuch as the Post Office was not an agent of the payee but of the payer.

We think that these pleas must prevail. It is clear that under see. 3 of Act XI of 1859, an arrear of revenue must be paid in each district within the due date; and if the sum is not so paid, then it becomes an arrear under sec. 2 of Act XI on the first of the following month. And, therefore, as this sum of money did not reach the Collector of Cuttack till the 2nd of May, clearly there was an arrear due upon this estate, and this estate was duly sold, It is to be observed that this money was never paid by the Plaintiff in the district of Cuttack but in the district of Balasore, and did not reach the Collector of Cuttack until the 2nd of May. Then, the next question is whether payment to the Post Office is equivalent to payment of Government revenue. We think that the Post Office cannot be considered as the agent of the Collector of Cuttack. As the Subordinate Judge says the Post Office is charged with the functions of common carrier. But payment to the Post Office is not payment of revenue, as is clear for two reasons : In the first place at the foot of the form of money-order, Rule 6 runs thus :-- "remittances of land revenue should be made in sufficient time before the kist day to ensure their reaching the Treasury on or before that day, and remitters are advised to allow ample margin of time on this account." This rule implies that it is payment to the Collector by the Post Office that acts as an acquittance and not payment to the Post Office. The second reason is that the Post Office is not authorized by the Government to give a valid receipt for the amount of revenue. It can only give a receipt for the money that comes into its hands at the risk of the remitter.

For these reasons we do not think we can take the same view of the matter as the learned District Judge has taken.

We hold that there was an arrear due upon this estate when the property was sold, and, under these circumstances, the sale was good and valid.

This may be a hard case for the Plaintiff, and it is no doubt a matter of much regret that the Collector of Cuttack did not see his way to exempt the estate from sale under the provisions of sec. 18 of Act XI of 1859. But we can only take a strict view of the legal aspect of the case, and we cannot acquit the Plaintiff from all blame, because he should have acted upon the warning contained in the Rule 6 quoted above, and in remitting the revenue through the Post Office, should have left ample margin for accidents in transit. For these reasons we must decree this appeal with costs.