SYED MOHIUDDIN Vs. PIRTHICHAND LAL CHOUDHURY

JUDGEMENT

(1.) This is an appeal by the first party defendants in a suit for declaration of title to immoveable property and for recovery of possession thereof. The lands in dispute originally belonged to one Syed Ashgar Reza, Khan Bahadur, and the plaintiff as also the first party defendants claim to have acquired his interest, the former by purchase at a sale in execution of a money-decree, the latter by purchase at a sale in execution of a certificate"under the Public Demands Recovery Act, 1895. The history of the devolution of the interest of the original admitted owner, as alleged by each of the rival claimants, may be briefly stated. Pirthichand, the present plaintiff, in execution of a decree for money against Ashgar Reza made under Section 90 of the Transfer of Property Act, attached the disputed lands on the 6th November 1905. At the execution sale, which followed in due course, he became the purchaser on the 5th February 1907; the sale was confirmed on the 11th May 1907 (Exhibit 5. Meanwhile, the manager of the Khagra Estate under the Court of Wards had, on the 10th October 1904, made a requisition to the Collector of Purnea, under Section 9(1) of the Public Demands Recovery Act, for a certificate with a view to recover from Ashgar Reza a sum of Rs. 4,723 on account of arrears of rent. The Certificate Officer made what purports to be a certificate on the 11th October 1904. Notice under Section 10 was thereupon ordered to issue upon the defaulter, and, it is said, was served on him on the 28th October 1904. Before the lands could be sold, Ashgar Reza died, and, on the 16th June 1905, notice was directed to issue on his heirs, his brother and his widow, who are the second party defendants in this litigation. What was intended to be a notice to the heirs of the deceased defaulter but was framed as a notice of a fresh certificate issued against them, is said to have been duly served before the 1st July 1905. The lands were sold to the proprietors of the Khagra Estate for Rs. 8U0 on the 9th January 1908, and the sale was confirmed on the 12th March 1906. The purchasers are the first party defendants in this suit. It will be observed that the attachment under the decree held by the plaintiff as also the sale held in execution thereof were subsequent to the attachment and sale respectively under the certificate. But when the sale under the certificate was held, there was a valid subsisting attachment on the lands under the decree of the plaintiff This, however, is of no assistance to the plaintiff, because the purchasers at the sale Under the certificate, have not acquired the property subject to the right of the plaintiff, if any, under his attachment. It is well settled that the attachment creates no charge or lien upon the attached property; it merely prevents private alienation; it does not confer any title on the attaching creditor: Moti Lal v. Karrabuldin 24 I.A. 170 : 25 C. 179 : 1 C.W.N. 639 Raghunath Das v. Sundar Das 24 Ind. Cas. 304 : 1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353 : (1914) M.W.N. 147 : 16 Bom. L.R. 814 : 18 C.W.N. 1058 : 20 C.L.J. 555 : 13 A.L.J. 154 : 42 C. 72, Soobul Chunder v. Russick Lal 15 C. 202 Mandaleswara Katari v. Prayag Dossji 2 Ind. Cas. 18 : 32 M. 429 : 19 M.L.J. 401. Consequently as the first party defendants purchased the property on the 9th January 1903, if the sale was validly held under the Public Demands Recovery Act, there was no interest subsisting in the judgment-debtor when the plaintiff purchased at the sale held in execution of his decree on the 5th February 1907. Thus the substantial question in controversy between the rival claimants is, whether the sale held on the 9th January 1900 was valid and operative under the Public Demands Recovery Act. The Subordinate Judge has answered this question against the defendants and has decreed the suit. On the present appeal the point for consideration is, whether the certificate sale, which is the root of the title of the defendants, is valid and operative in law. But before we examine this question, it is necessary to advert for a moment to a preliminary point urged by the appellants.

(2.) The appellants have contended that the question of the legality of the proceedings under the Public Demands Recovery Act was not raised in the issues framed in the suit and should not be investigated. It may be conceded that the issues as framed, do not directly and specifically raise the question of the legality of the certificate proceedings; that fact, however, does not necessarily show that the point is not open for consideration. The principle applicable in these circumstances was formulated by Sir James Colvile n Musammat Mitna v. Fuzl Rub 13 M.I.A. 573 : 15 W.R.P.C. 15 : 6 B.L.R. 148 : 2 Suth. P.C.J. 387 : 2 Sar. P.C.J. 626 : 20 E.R. 665. That principle is that where the parties have gone to trial knowing what the real question between them was, the evidence has been adduced and discussed, and the Court has decided the point as If there was an issue framed on it, the decision Will not be set aside in appeal simply on the ground that no issue was framed on the point; in other words, as Selwyn, L.J., observed in Katchekaleyana v. Kachiviyaya 12 M.I.A. 495 : 11 W.R.P.C. 33 : 2 B.L.R. 72 : 2 Suth. P.C.J. 206 : 2 Sar. P.C.J. 461 : 20 E.R. 426, the mere omission to frame an issue is not fatal to the trial of the suit. On th4 other hand, as Lord Westbury held in Baboo Rewun Pershad v. Jankee Pershad 11 M.I.A. 25 : 2 Sar. P.C.J. 214 : 20 E.R. 10, where the failure to frame the issue has led to an unfair trial 6r miscarriage of justice, the case will be remanded for re-trial. These principles have been repeatedly applied, as illustrated by the cases of Soorjomonee v. Suddanund 20 W.R. 377 : 12 B.L.R. 304 : Sup. Vol. I.A. 212, Chandra Kunwar v. Narpat Singh 34 I.A. 27 : 11 C.W.N. 321 : 29 A. 184 : 11 C.W.N. 321 : 4 A.L.J. 102 : 5 C.L.J. 115 : 17 M.L.J. 103 : 2 M.L.T. 109 : 9 Bom. L.R. 267 (P.C.), Perladh v. Broughton 24 W.R. 275, Muttayan v. Sangili 12 C.L.R. 169 : 6 M. 1 : 9 I.A. 128 : 4 Sar. P.C.J. 354 : 6 Ind. Jur. 486 : 5 Shome L.R. 7 Mahomed Basiroollah v. Ahmed Ali 22 W.R. 448 Sayad Muhammad v. Fatteh Muhammad 22C. 324 : 22 I.A. 4 Secretary of State v. Dipchand 24 C. 306 Balmakund v. Dalu 25 A. 498 : A.W.N. (1903) 112. Tested in the light of these principles, the objection urged by the appellants proves to be wholly groundless. The title of the defendants was expressly attached in the plaint, and the plaintiff specifically sought a declaration that the certificate sale was invalid and of no effect and that the defendants had acquired no title to the properties in suit. The course of the trial in the Court below gives ample indication that the parties have directed evidence to this point and the matter has been elaborately discussed by the Subordinate Judge. There is no trace of any objection taken by the defendants to the investigation of this question, and it is remarkable that the objection does not find a place in any of the twenty grounds taken in the memorandum of appeal presented to this Court. Consequently, under Order XLI, Rule 2, of the Civil Procedure Code, the appellants are not entitled to urge this ground, except by leave of the Court. this Court might in its discretion have refused such leave, but the point was allowed to be argued as it was felt that if the defendants were really taken by surprise in the Court below, the case might be re-tried. On investigation, however, it appears that not only were they not taken by surprise, but they adduced a considerable body of evidence in support of their title. We hold accordingly that the defendants have not been prejudiced in any way, that the objection, neither taken in the Court below nor in the memorandum of appeal here, is wholly unsubstantial.

(3.) In the investigation of the question of the legality of the certificate proceedings, on which the title of the defendants rests, the successive stages may be usefully recapitulated. In the first place, a requisition for a certificate is made under Section 9(1). In the second place, a certificate is made by the Certificate Officer under Section 9(3). In the third place, a copy of the certificate and a notice in the prescribed form are required to be issued to the judgment- debtor under Section 10(1) and to be served upon him in the manner specified in Section 31. In the fourth place, the certificate is enforced under Section 19(2) and executed in the manner provided by the Code of Civil Procedure for the enforcement of decrees for money. We shall now investigate what steps were taken to comply with the statutory requirements at each of these stages, and the legal effect of the omission, if any, to carry out strictly the directions given by the Legislature.