Lachmi Kant Deo Prasad Singh vs Rameshwar Chaudhury and Others

Ray, J.—This appeal arises out of a suit for setting aside a certificate sale under the Public Demands Recovery Act and for recovery of possession. The property affected by the suit is Touzi No. 16396 With an area of 22 bighas which was sold for a sum of Rs. 85. The sale was held on 28th March 1940 for arrears of cess for which a certificate is purported to have been filed u/s 4 of the Act (Bihar and Orissa Act 4 [IV] of 1914). The plaintiff had made certain allegations against the purchaser by way of impugning his purchase as a farzi transaction for the benefit of defendants third party. Defendants second party were some of the cosharers of the plaintiff. The certificate is ''purported to have been filed against some of the recorded proprietor''s but not all.

Matters that were specifically pat in issue were, (1) whether there was service of notice in accordance with Section 7 of the Act, (2) whether the suit was barred by the provisions of Section 43 of the Act and (3) whether the suit was bad for non-joinder of the Province of Bihar the certificate-holder. There was an issue also as to if the" sale was fraudulent and collusive Defendant l pleaded that the certificate proceedings were not defective in any way and there was due service of notice as prescribed by Section 7 of the Act, and "the sale was perfectly valid.

The trial Court held that the Government of Bihar was a necessary party and therefore there was defect in the frame of-the suit. With regard to the service of notice under, Section 7 of the Act he came to a finding that the notice had in fact been served. He, however, decreed the plaintiff''s suit holding that the entire proceedings were without jurisdiction; inasmuch as; some of the certificate-debtors having been found dead'' at the time of service of notice u/s 7, a fresh notice u/s 7 was required to be issued and as the same was never issued, the sale and other proceedings following were without jurisdiction. He summarised his findings in these words:

In my opinion, therefore, when the sale had been found to be void ab initio, the suit cannot fail because a necessary party hag not been joined.

The learned lower appellate Court, however, reversed, the decision of the learned Munsif finding that the suit was not maintainabler as the Province of Bihar, a necessary party to the suit, had not been impleaded, and, secondly, he rightly disagreed with the view of the trial Court that on the death of some of the certificate-debtors, a fresh notice u/s 7 has to be issued against all the certificate-debtors, or else the proceedings would be without jurisdiction; His view was, with which I certificate agree, that in case of death of any of the certificate-debtors, it is only neceassary to serve a fresh notice on his legal representatives, and, in default thereof, his interest in the property sold will not be affected. This position is clear from the provisions of Section 52 of the Act which provides:

Where a certificate-debtor dies before the certificate has been fully satisfied, the certificate-officer may, after serving upon the legal representative of the deceased a notice in the prescribed form, proceed to execute the certificate: against such legal representative; and the provisions of this. Act shall apply as if such legal representative wire the certificate-debtor and as if such notice were a notice u/s 7.

On the learned lower appellate Court''s reversal of the decree of the trial Court, the plaintiff has'' preferred this second appeal. The plaintiff''s contentions in this Court are: (1) that no certificate of the public demands in arrear has been filed as required u/s 4 of the Act and in such circumstances the entire proceeding culminating in the sale in question must be vitiated as without jurisdiction; (2) that in any view of the case, the service of notice u/s 7 of the Act which is equally imperative in order to give the certificate-officer jurisdiction to attach and sell a citizen''s property has not been served in accordance with law. The respondents'' learned Counsel urges that the suit is not maintainable in the absence of the Province of Bihar as a party defendant inasmuch as he is a necessary party. I will address myself to all these contentions in the order in which I have mentioned.

6.With regard to the first contention reliance has been placed upon a decision of the Judicial Committee of the Privy Council in the case in Baijnath Sahai v. Ramagut Singh (96) 23 Cal. 775. The dictum laid down in the case does no doubt support this contention of the appellant''s learned Counsel, but, however, the appellant will not be allowed to raise this contention in second appeal, inasmuch as he did not raise it in either of the Courts below. On the contrary, he had said in his plaint that on account of collusion of some of the defendants as cosharers the Touzi fell in arrears with the result that a certificate was issued. The learned Counsel contends that the word ''certificate'' in the plaint .has been used rather loosely, and what was referred to therein was the notice u/s 7, but not a certificate prescribed to be filed u/s 4. It may be so but at the same time as the matter was not put in issue, the defendant was prevented from adducing evidence to show that in fact a certificate was filed according to law. In the circumstances, I cannot give an indulgence to the plaintiff at the cost of the defendant by allowing him to raise the plea for the first time in second appeal. I need not, therefore, consider the contention on its merit.

I then proceed to consider his second contention, namely, non-service of notice u/s 7. It. may be noted that this contention does not involve a question of fraud in the shape of fraudulent suppression of the notice; it is only a contention based upon mere non-service In order to understand this argument, I have to place before me Section 7 of the Act which reads as follows:

When a certificate has been filed in the office of a Certificate-Officer u/s 4 or Section 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate.

It becomes then necessary to refer to the form in which a certificate is prepared and filed. It is Form No. 1 at page 55 of the Bihar Certificate Manual, 1937, and the form requires certain in formations to be recorded in the certificate, namely, the number of certificate, name and address of certificate-holder, name and address of certificate-debtor, amount of public demand and further particulars. Besides these informations, there should be appended to them at the foot, a certificate in these terms:

I hereby certify that the above mentioned sum of Rs....is due to the abovenamed...from the abovenamed...

In case where the certificate is signed on requisition sent u/s 5, there should be a further certificate to the effect that not only that the above mentioned sum is justly recoverable but that its recovery by a suit is not barred by law. In the present case as the certificate is u/s 4 of the Act, the last mentioned endorsement by the certificate officer is not necessary. Reading the form of the certificate as a whole, it no doubt takes the place of a decree for recovery of dues from the, certificate-debtor. No less an important part has to be assigned to the endorsement to be appended at the foot of the table of informations in the form, because it is that endorsement which gives it the character of a decree Bereft of this endorsement it will simply be a tabular account there being nothing on the face of it to vouchsafe its correctness and its enforceability. In the circumstances, if it were a case, as it seems to be in the present case, in which a document purporting to be a certificate contained a tabular statement of informations but not the certificate, I will have no hesitation in holding that it will be considered to be a certificate proceeding without a certificate.

In this view of the matter, I shall consider whether there has been a service of notice in accordance with Section 7 of the Act. The section, which has already been quoted, makes it abundantly clear that a copy of the certificate will be served upon the certificate-debtor, besides a notice in the prescribed form, which, form is printed at page 57 of the Manual. If in any particular case, there ms simply service of a notice in the prescribed Form No. 3, but no copy of the certificate is served, it will be a case of non-compliance with the imperative, the certificate-debtor will be entitled to recover possession of the property or to set aside the sale under the provisions of Section 45 of the Act. The notice purporting to be a notice u/s 7 with the service report is on record. I had it read out to me, and I find that on a single sheet of paper there were at first tabular statements giving the informations necessary to be incorporated in the certificate, but there is no certificate of the certificate officer certifying the correctness of the demand as required in Form No. 1 printed at page 65. Below the tabular statement, notice in Form No. 3 appears. In the circumstances I am constrained to hold that there might have been service of notice but there was no copy of certificate served.

It has been strenuously argued by Mr. Jha that all the informations that are necessary to be conveyed to the certificate-debtor, namely, the name of the certificate-holder, the name of the certificate-debtor, the amount due and the property in respect of which it is due, being there, it shall be held that that amounts to sufficient compliance with the provisions, in other words it should be held that notice was served on the certificate-debtor with a copy of the certificate.

He further urges that to hold otherwise would amount to giving preference to mere technicality and form over substance The argument, though at first sight sounds attractive, does not carry conviction in view of the observations of their Lordships of the Judicial Committee in Baijnath Sahai v. Ramgut Singh (96) 23 Cal. 775. Their Lordships have laid down that for this Extraordinary procedure of investing a revenue officer with the power of selling a subject''s property certain forms have been laid down to be followed and conformed and that in such proceedings those forms are also matters of substance They have also said that a certificate is an ex parte decree as it is filed behind the back of the certificate-debtor, and the certificate-debtor''s right to impugn the validity and correctness of the demand is reserved to a stage to come after service of notice u/s 7, and unless you give the certificate-debtor a notice with the copy of the decree, he is in fact invited to take exception to the validity or correctness of the demand. Therefore, even though it has the appearance of a mere technicality or a form, it has the value of substance, and I, therefore, hold that in this case copy of the certificate was not served. Mere knowledge of an order could not take the place of its service: see Gondar v. Gondon Vol. 201 L.T. 84.

Secondly, with regard to the service of notice, the only evidence that is on record is formal proof of the peon''s report. The serving peon, though alive and still in service of the Collector, has not been examined. Another peon has been, examined whet was neither an attestor to the service nor had, otherwise, any knowledge of service He simply proved the handwriting of the serving peon and the document was admitted into evidence Technically speaking, it can be said that the document has been properly proved and, therefore, has been rightly admitted into evidence, but the certificate-debtor, namely the plaintiff, is deprived of cross-examining that serving peon with regard to the manner of service as reported by him. Secondly the service appears to have been effected on one Pun Pun Jha representing himself to be a patwari of the certificate-debtor. The Rules require that the service should be effected personally on the certificate-debtor or on his agent duly authorised to accept notice on his behalf. Of course, there is a further procedure applicable to cases in which personal service either on the certificate-debtor or on his agent cannot be effected but as the present is not a case of that kind, I need not address myself to those alternative provisions. The learned lower appellate Court has said that the plaintiff should have examined Pun Pun Jha to deny the service, but in considering whether the service has been proved in the manner prescribed in law, the question of onus acquires some amount of importance The onus has always been held to lie on either the certificate-holder or the auction-purchaser whoever he may be The initial onus that lies on the certificate-debtor is to deny the receipt of the notice and that has been done In the circumstances the defendants should have, proved that the notice has been seryed in accordance with law.

Assuming that actual service has been proved to have been effected on one Pun Pun Jha and assuming that Pun Pun Jha as reported -in the peon''s report was at the time a patwari of the certificate-debtor, there is nothing to show that he was empowered duly to receive notice on behalf of the certificate-debtor, his alleged master. In the circumstances I hold that the learned lower appellate Court''s finding that the notice had been served in substantial compliance of law cannot be upheld. The service of notice, in "my judgment, is defective in two ways: (1) that it is not accompanied with a copy of the certificate and hence there has been no service of the copy of certificate and (2) that it has not been served on the certificate-debtor''s agent who was empowered to receive the notice on his behalf. The appellant, therefore, has succeeded, in establishing both of his contentions On which he is entitled to have the sale set aside provided his suit is maintainable in the absence of the Province of Bihar as a party defendant.

In support of his last contention, Mr. Jha cited a very recent decision of the Calcutta High Court in the case in Gaibandha Loan Office Ltd. v. Mt. Saiyadunnessa Khatun AIR 1943 Cal. 144. In that case in which the certificate-debtor had brought a suit for setting aside the certificate sale, his suit was objected to by the defendant as barred by limitation and if it were found that the plaintiff was entitled to compute the period that was necessary to serve the Secretary of State with notice u/s 80, Civil P.C., he, should be in the In such circumstances it was held by their Lordships of the Calcutta High Court that the Secretary of State was a necessary party and the period required to serve a notice u/s 80, Civil P.C, should be added to the period of limitation provided in the Act. In coming to this conclusion, their Lordships were influenced very greatly by the proviso to Section 25, Public Demands Recovery Act of Bengal. They said:

There are two alternative but mutually exclusive procedures provided for in the Public Demands Recovery Act of 1913 to sot aside a certificate sale on the ground of non-service of the notice issued u/s 7 of that Act. One is by an application to the certificate officer (Section 23) and the other by suit in a civil Court (Section 36). Where the first method is adapted by the certificate-debtor his application must be heard with notice to both the auction-purchaser and the certificate-holder (proviso to Section 25). We do not see why both of them should not be necessary parties, defendants, in a suit u/s 36, where the same relief is asked for and on the same ground.

In the Bihar Act, however, the corresponding provision is couched in different language, the language being "persons affected thereby." In the circumstances the necessity of impleading the Secretary of State or for the matter of that the Province of Bihar depends upon whether he is affected in any way by the relief that is sought in the suit. The relief sought is to recover the property from the auction-purchaser after having the sale set aside or having it declared that the sale is not binding against him. I fail to see any reason why the Province of Bihar is at all interested in any one of these reliefs. As observed in the Calcutta case just referred to the Province may, be affected in the way that it will have to start a fresh execution proceeding, and will have to undergo some expenditure and trouble Having that in view, if the plaintiff is not held entitled to any such relief as will put the Province to disadvantage, there will be absolutely no reason to throw away the suit on the mere ground that the Province of Bihar is not impleaded as a (party. Parallel cases can be cited to show that the Province is not a necessary party. Two cases have been-cited before me by the learned Counsel for the appellant to show that in suits for setting aside auction sales held under the CPC by one whose claim under Order 21, Rule 58 has been rejected, the decree holder is not a necessary party. They are: Subbaraya Mudaliar Vs. Kandaswamy Mudaly and Another, and Tulsi Das v. Shiv Dat AIR 1927 Lah. 631. Besides he has cited another case directly in point of the Calcutta High Court in which in a suit for recovery of possession on the declaration that the certificate sale was void ab initio, it was held that the Secretary of State if not a necessary party. The decision is reported in Raghuraj Singh v. Maharaj Lal 14 C.W.N. 606. I should therefore, hold that there is no defect in the frame of the suit in the absence of the Province of Bihar as a party defendant.

I should, however, in allowing the appeal condition my order in a manner so as to ensure that no prejudice is caused to the Province of Bihar. In that event, it will be a suit by the result of which the Province does not stand affected, and its non-joinder is of no consequence I should, therefore, set aside, the judgment of "the learned lower appellate Court and hold that the plaintiff is entitled to get possession of his properties from the auction-purchaser tender the certificate sale which will not be held binding against, him, but he must pay the entire dues due to the Province of Bihar as arrears of cess plus costs of the execution that was borne by them. This amount must be deposited in the trial Court within two months from today in default of which his suit will stand dismissed. In the circumstances Of this case, I make no order as to costs.