C RAGHUNATHA ROW SAHIB Vs. VELLAMOONJI GOUNDAN

JUDGEMENT

(1.) The learned Judge confirmed the decree setting aside the distraint on the ground that it was for an excessive amount. It is contended here with reference to Section 53(2) Estates Land Act, that the amount in respect of which the distraint was excessive, should have been ascertained, and that the distraint should have been set aside in respect of that amount only and sustained in respect of the remainder of the demand.

(2.) Section 53(2) is general in its wording, It refers to the patta as enforceable without qualification to the extent, to which it is found to be correct. On its merits appellant s contention would appear to be in accordance with convenience and justice. Contra it is argued first that a patta found incorrect to the amount of the demand is not partially correct but totally incorrect, a partially incorrect patta being for instance found correct as to some only of the items of the holding covered by it. No authority has been shown for this contention; and it does not commend itself on its merits.

(3.) Next it is urged that Section 53(2) deals only with the procedure by suit on the patta and provides only for the enforceability of the patta by suit. This is supported on the ground that Section 53(1) refers to distraint and sale of moveables and to sale of the holding under Chapter VI and that Section 53(2) must therefore have been intended to regulate the remaining method of recovery provided by the Act, that by suit. This does not in my opinion follow. As observed above, Section 53(2) contains no restriction of its effect to suits. The use in it of the word "nevertheless" is against the importation of that restriction. And finally such importation is in my opinion negatived by the fact that exchange of patta and muchilika is not under the Act a necessary preliminary to the institution of a suit, and a provision regarding errors in the former could therefore have no effect in connection with one.