CERTIFICATE OFFICER Vs. KASTURI CHAND MALU

JUDGEMENT

(1.) DEFENDANTS 1 and 2, who are the Certificate Officer and the State of Orissa represented by the Collector of Ganjam, are the appellants in this appeal against a reversing judgment of the learned Additional Subordinate Judge, Berhampur, in a suit for declaration that the certificate proceedings for recovery of arrears of sales tax dues which are being pressed by defendant No. 1 are illegal and not : in conformity with the provisions of the Madras Revenue Recovery Act, 1859 and for further relief for permanent injunction.

(2.) AS it appears, the plaintiff, one Rama-deen defendant No. 3 and another giridharilal Malu, not a party to the present suit, were partners of a firm known as reedkaran Rarnadin which was registered firm under the Indian Partnership Act, 1932. The firm came to be dissolved with effect from 15-5-56. Defendant No. 3 had undertaken to pay up the liability of sales tax and other public dues upto the date of dissolution. Bulk of the amount of sales tax as demanded have been paid, but the outstanding amount. of Rs. 18,277-50 remained due for which certificate proceedings have been taken. Objections were raised before the Certificate Officer on various counts, but they were overruled and the properties were threatened to be sold. Steps were taken in appeal and revision under the said Act, but they proved futile. Ultimately the suit was filed.

(3.) THE other defences taken in the suit may not be necessary to be indicated and it may be sufficient to state that one of the defences was want of notice under section 80, Civil P. C. In paragraph 13 of the plaint it was stated : "the notice under Section 80, Civil P. C. is not necessary as the public officers concerned have been informed of the several illegalities and irregularities etc. , and were approached with prayers not to perform the sale. As the sale is proceeding on 25-8-1963 and no time is left to protect the plaintiff's rights the public officers cannot claim the statutory period of two months. . . . . " in paragraph 3 of the written statement by the two public officers it was contended : "the plaintiff, before the institution of the suit has not served on the defendants the notice as required under Section 80, Civil P. C. and the contention advanced in para. 13 of the plaint that such notice is not necessary is untenable. The suit instituted without such notice is not maintainable in law. " issue No. 2 was framed in the suit to the following effect :--"is the suit instituted without notice under Section 80, Civil P. C. and not maintainable?"