TIKENDRAJIT GHOSH Vs. MRITUNJOY MONDAL

JUDGEMENT

(1.) The facts giving rise to this appeal may be shortly stated as follows : There was a certificate filed against the plaintiff Mritunjoy Mondal by the Certificate Officer of Khulna in respect of a public demand under Section 4, Public Demands Recovery Act. The demand not being paid the certificate was executed and an order was passed for attachment and sale of certain property belonging to the certificate-debtor fixing 3 January 1935 as the data of sale. In the sale proclamation however which was issued under Rule 46, Schedule 2, Public Demands Recovery Act, the date of sale was stated to be 1 March 1935. The property was actually sold on 3 January 1935, and purchased by defendants 2 and 3. The plaintiff made an application for setting aside the sale under Section 23, Public Demands Recovery Act, but that was dismissed. He thereupon instituted the present suit in the Court of the First Munsif at Khulna and prayed to have the sale set aside on the ground of its being fraudulent and without jurisdiction. The Munsif who heard the suit held on evidence that the property was sold on a date different from that mentioned in the sale proclamation but he was of opinion that at the most, it was a material irregularity which might entitle the plaintiff to make an application for setting aside the sale under the provisions of the Act itself, but that as no fraud was established, no suit would lie in a Civil Court. In this view of the case the suit was dismissed. There was an appeal against that decision taken by the plaintiff which was heard by the Subordinate Judge, Khulna. The learned Subordinate Judge reversed the decision of the trial Court and decreed the suit on the ground that the sale was without jurisdiction. It is against this decree that the present second appeal has been preferred by the purchaser-defendants.

(2.) Two points have been taken by the learned advocate who appears in support of this appeal. It is contended, in the first place, that the allegation of fraud being negatived by both the Courts below no suit would lie in Civil Court as laid down in Section 37, Public Demands Recovery Act. The second ground taken is that the insertion of a wrong date in the sale proclamation was nothing more than an irregularity and would not make the sale null and void and that the remedy of the plaintiff was to approach the certificate officer for relief under the provisions of the Public Demands Recovery Act, itself. As regards the first point we agree with the learned advocate for the appellants that a suit of this description is not contemplated by Section 37, Public Demands Recovery Act. Both the Courts below have concurrently held that there was no fraud established in this case; and under Section 37 of the Act, a suit would lie in the Civil Court only when there is fraud. It has been held however in a series of cases that when the act of the revenue authorities is wholly unauthorized and constitutes only a colourable exercise of the provisions of the statute, it is open to the Civil Court to grant relief to the aggrieved party under the provisions of general law and this jurisdiction is not ousted by Section 37, Public Demands Recovery Act : Reajunddin V/s. Sahanatulla ( 22) 60 I.C. 759 and Pratap Chandra V/s. Secy. of State ( 22) 9 A.I.R. 1922 Cal 101. In other words, if the sale is one under the Public Demands Recovery Act, even though the certificate officer exercised his jurisdiction irregularly, it cannot be avoided by civil suit and the party aggrieved must take recourse to the machinery provided in the Act itself. Where, however, the certificate officer had no authority to hold the sale, and it was not a sale under the Public Demands Recovery Act at all, the limitation of the special procedure laid down in the Act ceases to be operative and the party can have his remedy in an ordinary civil suit.

(3.) The controversy, therefore, narrows down to this as to whether the sale held in the present case by the certificate officer was or was not a sale under the Public Demands Recovery Act. This leads us to the second point raised by the learned advocate for the appellants. Under Rule 46, Schedule 2, Public Demands Recovery Act, which corresponds very closely to the provisions of Order 21, Rule 66, Civil P.C., when immovable property is ordered to be sold by public auction, the certificate officer is required to cause a proclamation of the intended sale to be made in the language of such Court, and such proclamation shall be drawn up after notice to the certificate-debtor and shall state the time and place of sale and certain other things fairly and accurately. Thus, before the sale takes place under the Act, it is necessary that the time and place of the sale should be advertised. In a case where an execution sale was held by the Court some hours earlier than the time mentioned in the sale proclamation, a suit was instituted by the aggrieved party to set aside the sale on that ground and for having a declaration of the judgment-debtor's right to the property sold which, it was alleged, stood unaffected by the sale. The suit was decreed by the Court of Appeal below and an appeal was preferred which was heard by Sir W. Coiner Petheram, C.J. and Gordon J. The case is reported in Basharutulla V/s. Uma Charan ( 89) 16 Cal 794 at p. 795. Petheram, C.J., in affirming the judgment of the Court of Appeal below observed as follows: It is perfectly true that there is no provision in the Code that the sale shall take place at the time and place advertised, but it is clear that such a provision must be implied, and that consequently no sale can take place under the Code except at the time and place advertised under the Code.