JANAKDHARI LAL Vs. GOSSAIN LAL BHAYA GAYWAL

JUDGEMENT

(1.) The subject-matter of the litigation out of which the present appeal arises is Mouza Raghunathpur in the District of Gaya. The plaintiff respondent commenced the action for declaration that the sale of the Mouza held by the Collector under the Public Demands Recovery Act, 1895, is a nullity, and for recovery of possession of the property from the purchaser. It appears that on the 26 July 1905 the Collector made a certificate for recovery of Rs. 15-1. as arrears of road-cess for the June kist of that year. The plaintiff deposited in the Treasury two days later the entire amount due. This fact, however, was overlooked, and a notice under Section 10 of the Public Demands Recovery Act of 1895 was served on the 27th August on the basis of the certificate previously made. The property, which is now valued at Rs. 6,000, was sold on the 18 December following, and was purchased by Sheo Sahai Lal for Rs. 100. The sale was confirmed on the 20 February 1906, and the purchaser on the 28th June 1906 transferred the property for Rs. 500 to Janakdhari Lal. On the 2 January, 1907 the plaintiff commenced the present action for declaration of his title and for recovery of possession. He joined the Secretary of State for India in Council as the first defendant, Sheo Sahai Lal, the purchaser at the certificate sale as the second defendant, some mokuraridars as the third, fourth, fifth and sixth defendants, and the transferee from the auction-purchaser as the seventh defendant. The claim was resisted by the seventh defendant alone, substantially on the ground that arrears of cesses were due, that the sale had been rightly held, and that in any event, it could not be set aside, as against a bona fide purchaser for value without notice. The Subordinate Judge in the Court below found that the certificate was as a matter of fact made, not on the 26 July 1905, but on the 11 August, on which date an entry was made in the order-sheet initiating the certificate proceedings. He concluded, therefore, that on the date on which the certificate was made there were no arrears due, and that, consequently, the Collector had no jurisdiction either to issue a certificate or to execute it. In this view, he set aside the sale and made a decree in favour of the plaintiff which entitled him to recover possession. The seventh defendant has now appealed to this Court, and, on his behalf, it has been contended, first, that the certificate was made on the 26 July 1905, and not on the 11 August, as held by the Subordinate Judge; secondly, that the only remedy of the plaintiff was by proceedings under Secs.12 and 15 of the Public Demands Recovery Act; and, thirdly, that even if a regular suit is held to be maintainable, the plaintiff is not entitled to any relief on the ground that the sale took place on the basis of a satisfied certificate.

(2.) As regards the first ground taken on behalf of the appellant, we are satisfied that the view taken by the Subordinate Judge is erroneous. The copy of the certificate on the record shows that it was initialled by the certificate officer on the 26 July, and there is no foundation for the speculation of the Subordinate Judge that the entry of the date was subsequent to the actual making and signature of the certificate. It is perfectly true that the date is not entered in the space provided in the printed form for that purpose; nor is the amount due mentioned in the place where it ought to have been made. But these defects do not, by themselves, afford any basis for suspicion that the certificate was subsequently made and deliberately antedated. We must consequently hold that the certificate was made on the 26 July 1905.

(3.) The second ground taken on behalf of the appellant raises the question as to the remedies open to the plaintiff after the certificate had been made. It is argued on behalf of the appellant that the sole remedy of the plaintiff was to file a petition of objection to the certificate under Section 12 of the Public Demands Recovery Act, and if he was defeated on such an application, he might institute a suit in the Civil Court under Section 15. In our opinion, there is no foundation for this contention. Section 12 contemplates a case in which an objection is taken that the judgment-debtor is not liable to pay the whole or any part of the amount for which the certificate has been made and filed against him. Sec. 13 provides that the certificate officer may set aside, modify or vary the certificate if the petitioner establishes his denial of liability. It is manifest that the procedure provided in Section 12 is open only when the judgment-debtor is in a position to allege and prove that there were no arrears due from him at the time when the certificate was made, or that a smaller amount than the one in respect of which the certificate was made was due. Section 12 has no application when the judgment-debtor admits that the certificate was rightly made, but alleges that the amount of arrears has been subsequently paid. Section 15 has precisely the same scope, and entitles the judgment-debtor to maintain an action for cancellation or modification of the certificate. A certificate which has been properly made for arrears actually due cannot be cancelled or modified, because the demand has been subsequently satisfied. This, we think, is reasonably plain from Section 17, Sub-section (1), which provides that no certificate duly made shall be cancelled by a Civil Court, otherwise than on the ground that the amount stated in the certificate was actually paid or discharged before the making of such certificate, or that no part of the amount stated in the certificate was due by the judgment-debtor under the certificate. In other words, a certificate can be cancelled only on the ground that the amount stated was either never due, or, if due, had been paid before the certificate was made. Secs.12 and 15, therefore, have obviously no application to the circumstances of the present litigation, in which the contention of the plaintiff is, not that the certificate was improperly made, but that the sale was held without jurisdiction, because the amount due under the certificate had been paid before the sale was held. We must, therefore, overrule the objection of the appellant that the sole remedy of the plaintiff was by an application under Section 12, or by a suit under Section 15. In the view we take, neither of these courses was open to the plaintiff. It is, therefore, unnecessary to consider whether, if either of these courses had been open to the plaintiff, that could have been rightly treated as his exclusive remedy. The decision of their Lordships of the Judicial Committee in Bal Kishen Das v. Simpson (1898) I.L.R. 25 Calc. 833, as also the earlier decisions of this Court in Baijnath Sahu V/s. Lala Sital Prasad (1868) 2 B.L.R. (F.B.); 10 W.R. 66 (F.B.) and Harkhoo Singh V/s. Bunsidhur Singh (1898) I.L.R. 25 Calc. 876, tend to support the proposition that if circumstances are established which show that the sale has been held without jurisdiction, the sale cannot be rightly treated as one made under the provisions of the Act, and may consequently be challenged by a civil suit without recourse to the procedure provided in the Act; in other words, in a case of this description, as there is no foundation for the exercise of jurisdiction by the Revenue authority, the person injuriously affected is not deprived of his remedy by recourse to the ordinary law. As we have already indicated, however, in the case before us, the plaintiff was not entitled to proceed under either Section 12 or 15 of the Public Demands Recovery Act. The second ground urged on behalf of the appellant cannot, therefore, be supported.