BALDEO PRASAD Vs. SUKHI SINGH

JUDGEMENT

(1.) In the action out of which this appeal arises the plaintiff was the purchaser from defendants 2 and 3 of a part of a holding khata No. 56 and a mortgagee of the remainder of that same holding and was a purchaser of the entire area of a second holding khata No. 57. These two holdings are in the Government Khas Mahal of which defendant 1, the Secretary of State for India in Council, is the landlord. Subsequent to the acquisition by the plaintiff of the interest which I have stated in the land, the Secretary of State instituted proceedings under the Public Demands Recovery Act for recovery of rent of the holding against the original tenants who are defendants 2 and 3 in the suit. The proceedings were carried up to the sale of holdings which were purchased by defendants 4 to 7 of the suit. Thereafter the plaintiff attempted to get the sale set aside under Section 29, Public Demands Recovery Act, on the ground of irregularities and fraud. That application failed. Then the plain, tiff brought his title suit claiming to recover the property on getting a declaration that all the certificate proceedings were fraudulent and that his title to the property was not affected by them. The Munsif dismissed the suit holding that there was no fraud or irregularity in the execution proceedings, that the suit was barred by Secs.45 and 46, Public Demands Recovery Act (Bihar and Orissa Act 14 of 1914), and that the suit was also barred by Section 80, Civil P.C.

(2.) On appeal from this decision the Subordinate Judge held in agreement with the Munsif that there was no irregularity or fraud proved to have been committed in the execution proceedings. The Subordinate Judge further agreed with the Munsif that the sale could not be set aside and that the suit so far as in it the plaintiff claimed relief by setting aside the sale was barred by Secs.45 and 46 but that the nature of the proceedings was such as to pass not the holdings in the manner in which sale in execution of a rent decree passes the holding but passed only the right, title and interest of the judgment-debtor in the property in the manner in which a money execution operates. The Subordinate Judge thought as regards Section 80 that the suit was not maintainable against the Secretary of State but was maintainable against the other defendants.

(3.) In second appeal it is contended that Section 80 where it is applicable bars the entire suit which must fail as a whole and can not, on the ground of non- maintainability, be rejected against some and allowed to proceed against others of the defendants. It has also been argued that the Subordinate Judge is wrong in holding that the effect as the sale was only that of sale in execution of a money decree. It is clear having regard to the wording of Section 80 that the plaint was defective. The section concludes with the requirement that "the plaint shall contain a statement that such notice has been so delivered or left". There was at one time a difference of judicial opinion whether Section 80 applied to all suits in which the Secretary of State was a defendant or whether its provisions could be in some oases relaxed, but that question has been set at rest by the decision of the Privy Council in Bhagchand Dagadusa V/s. Secy. of State where their Lordships refused to read into the statutory provision words of qualification and limitation which are not to be found in the section. In that case the entire suit had been dismissed and the appeal to His Majesty in Council was dismissed also. No opinion is there expressed as to whether the correct procedure in such a case is to dismiss the suit itself or to reject the plaint; but the Code,