HARI CHARAN SINGH Vs. CHANDRA KUMAR DEY

JUDGEMENT

(1.) This is a suit to set aside a sale held under the Public Demands Recovery Act (I of 1895) as amended by Act I of 1897.

(2.) The plaintiff was the owner of a house at 15 Dixon's Lane in Calcutta and of four collieries in the district of Burdwan. He, on the 17 October 1901, mortgaged this house and a six- annas share in the collieries to the defendant Elias Meyer. His contention is that all road-cess in respect of the collieries was payable by this defendant who, however, contests his liability. Road-cess which is a public demand, was admittedly in arrear and a certificate was admitted duly made and filed for its recovery under the Act by the Certificate Officer of Burdwan, Notice under Section 10 is said to have been served on the 12 July 1902. This is denied. I will deal with the point later. On the 25 July directions were given to enforce the certificate and the case was transferred for execution under Secs.223, 224 of the Civil Procedure Code to the Certificate Officer of the 24 Pergunnahs for execution. This transfer has been impugned but it appears to me to have been in order, and or have fulfilled the requirements; of Section 10 Clause (3) of the Act. On the 27 July 1902 the plaintiff filed an objection before the certificate officer of the 24-Pergunnahs and asked for stay of execution to enable him to move before the Certificate Officer at Burdwan. This was granted: and on the 29 September the plaintiff put in a petition of objection before the Certificate Officer of Burdwan, alleging (Exhibit 02) that no notice had been served, that the certificate was issued "illegally mproperly and erroneously," that it was inoperative and asking to be relieved of the demand. This petition appears to me to have been made under Section 12. It is said it is not such a petition as there was no denial of liability. There clearly however was such a denial. It may be the fact that it was never contested that load cess was due from some one and that Meyer should pay it but the plaintiff alleged that he was not liable and indeed contended that the certificate was absolutely inoperative. Certain adjournments were granted and before the petition waft heard and on the 10 January 1903 the plaintiff filed a further petition stating that Meyer had purchased the colliery with all liability for road cess, that he was in possession and he therefore again asked to be relieved from the "improper demand." The objection was heard on the 28 January 1903 and disallowed It was pointed out by the Certificate Officer that Meyer had paid the cesses from the date of his entry into possession and that the plaintiff was liable for the period antecedent to that date The plaintiff again petitioned (Exhibit 04) asking that the amount due under the certificate might be realised by the attachment of the moveable property of the colliery. This petition was on the 2 March, 1903 disallowed on the ground that the colliery was in the possession of others and the moveables in it could not be sold to satisfy the plaintiff's liability. On the 5 March the plaintiff again petitioned (Exhibit 05) alleging that Meyer was liable to satisfy the demand and asking that the certificate might be realised as requested in the former suit.

(3.) On this Meyer was asked if he had any objection. He had The order sheet records that the plaintiff's pleader admitted. liability but contended that it should be satisfied by sale of the moveable property of the colliery. The petition was disallowed and on the 28 March 1903 the Certificate Officer of the 24-Pergunnahs (whose hand had meanwhile been stayed) was again directed to take action to enforce the certificate. Thereafter proceedings were held in the 24- Pergunnahs.