Rajnandan Prasad vs Mukh Lal Gir and Others

James, J.—The defendant Mt. Bisha Kuer, was made a certificate debtor by the Certificate Officer of Saran under the Public Demands Recovery Act, and her property was sold in due course in execution, although no notice had been served on her u/s 7 of the Act. Six months after the sale had been confirmed) she served a notice u/s 80, Civil P.C., on the Collector intimating her intention to institute a suit. An inquiry was thereupon made into the circumstances in which the return of service had been accepted, with the result that it was found that there had been no proper service at all. Mt. Bisha Kuer was then invited to make an application u/s 29, Public Demands Recovery Act in order that the sale might be set aside. She did this with the result that, after notice on the parties and hearing of the application the sale was set aside. The plaintiff in the present litigation, who had purchased the property from the person who acquired it at the sale by auction in execution of the certificate, appealed unsuccessfully from that decision; and an application to the Board of Revenue for revision was dismissed. He then instituted this suit praying for a declaration that he had acquired a good title by his purchase which had not been affected by the orders of the Certificate Officer setting aside the sale, and that his possession might be confirmed. The suit was dismissed by the Munsif of Chapra who held that the order of the Certificate Officer setting aside the sale was made with jurisdiction, and that the plaintiff was not entitled to challenge the propriety of the order by a civil suit. His decision was affirmed on appeal by the District Judge of Saran, and the plaintiff now comes up on second appeal to this Court.

Section 29, Public Demands Recovery Act, provides that the certificate debtor may, within sixty days from the date of sale, apply to the Certificate Officer to set aside the sale on the ground that notice was not served u/s 7, but it is provided by Sub-section (2), Section 29 that the Certificate Officer may entertain an application made after expiry of sixty days from the date of sale if he is satisfied that there are reasonable grounds for so doing. When the application was formally made u/s 29(2), Public Demands Recovery Act, the Certificate Officer recorded an order that there were reasonable grounds for taking action in this case as the notice u/s 7 did not appear to have been served on the certificate debtor. It is argued on behalf of the appellant that the Certificate Officer ought to have recorded his grounds for being satisfied that there was excuse for the delay made by the certificate-debtor in preferring the application, and that those grounds ought to have been such grounds as would be treated as sufficient in the case of a person who was invoking the aid of the provisions of Section 5, Lim. Act. But the Public Demands Recovery Act, requires only that the Certificate Officer should be satisfied that there are reasonable grounds for entertaining the application and we cannot in this Court prescribe the precise form in which he is to be required to set forth the reasons justifying his finding that he is so satisfied. If the grounds which satisfied the Certificate Officer were insufficient to justify the finding, the point should have been taken when the plaintiff appealed under the Act from the Certificate Officer''s decision. Mr. S.N. Rai further argues that, since by the provisions of Section 45, Public Demands Recovery Act, no suit may be instituted to set aside the sale after more than a year from the date of delivery of possession it ought to be held that the Certificate Officer cannot u/s 29 entertain an application to set aside the sale after a year has elapsed from the date when possession was delivered to the auction-purchaser. But Sub-section (2), Section 29, contains no such restriction; and it is clear that discretion given to a Certificate Officer by that Sub-section cannot be treated as limited by the fact that one year is prescribed as the period of limitation fox a suit to set aside a sale. Power is given in the widest terms to the Certificate Officer to entertain an application made after the expiry of sixty day and if he is satisfied that there are reasonable grounds for doing this and if he finds as a fact that notice was not served u/s 7 and that therefore the sale must be set aside, it is not open to a civil Court to question the propriety of his decision. Mr. S.N. Rai suggests that the Certificate Officer had no power to set aside the sale until he found that the applicant had sustained substantial injury but this provision of Section 29 affects, not cases in which there has been no service of notice u/s 7 but cases in which a sale is set aside on the ground of some material irregularity in certificate proceedings other than failure to serve the necessary notice.

For these reasons I would affirm the decision of the lower appellate Court and dismiss this appeal. Each of the contesting defendants is entitled to his costs.

Jwala Prasad, J.

I agree.