TMI Blog1926 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 1st September 1919. Ga property was sold on the 28th October 1918 and the sale was confirmed on the 3rd January 1919 and delivery made to the purchasers, Defendants Nos. 2 and 3, on the 1st November 1919. The sale of gha property was held on the 2nd December 1918 and confirmed on the 3rd February 1919 and delivery of possession given to the purchaser, Defendant No. 1, on the 1st September 1919. 2. The plaintiffs based their title on a mortgage executed by Defendants Nos. 5 to 15 who had an eight-annas share in the properties in favour of the plaintiffs in December 1903. A suit upon the mortgage was brought by the plaintiffs in 1917 and a decree for foreclosure was passed in favour of the plaintiffs on the 8th March 1919. The other eight annas share was also mortgaged by the owners thereof (to Defendant No. 1 who obtained a decree on it and in execution thereof purchased the property. It is not necessary to consider it as it is not in controversy in these cases. 3. The Subordinate Judge in the trial Court held that the sales were not liable to be set aside but as he found that they were vitiated by fraud he held that they were not binding on the plaintiffs and did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name and address of the certificate-debtors and the amount of public demand for which the certificate was signed were mentioned. The omission, therefore, to mention these names and the figures in a portion of the form cannot be taken to be material omission which would go to the length of invalidating the certificates. The idea underlying the filling up of the form is that the debtor should have information of the specific sum claimed from him and the particulars thereof. In the certificate, as it stands, all the necessary information is given. In this connexion reference has been made to the case of Syed Mohiuddin v. Pirthi Chand Lal [1915] 19 C.W.N. 1159. There the facts were very different and the learned Judges on these facts were justified in holding that the certificate was not a valid one under the law. In that case, as here, blank spaces under the tabular statement were not filled up and in the columns of the table the amount recoverable from the debtors was not correctly stated. Under column where the amount of public due for which certificate is signed has to be put, the sum mentioned was different from the amount put in column 5 which requires particulars of the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be held to be bad. In my opinion this is a mere irregularity which it is not proved has caused injury to any party. It is also stated that under Rule 46(4), the sale-proclamation should state that the holding should be sold with power to annul all encumbrances, and as this statement is wanting in the sale-proclamation the sale is not one under the law. This objection, if there is any force in it, is available to the purchaser; but it does not lie in the mouth of the debtor or his representative to take exception to the validity of the sale on this ground. It may be mentioned here that the properties are occupancy holdings under the Government khas mehal. Under the tenancy law the purchaser of an occupancy holding sold for arrears of rent takes it with certain defined rights, the omission to mention which cannot invalidate the sale. 10. Then it is argued that the sale-proclamation was not published at the local thana under Rule 47(3). This omission too is not fatal to the sale. Even if these irregularities are taken to be material irregularities, they must be such as to cause injury to the debtor. The plaintiffs' case is that the properties were sold at an inadequate pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session of their eight-annas share after declaration of their title thereto; (kha) the certificates and the sales held by the certificate officer of Contai in the following cases (Nos... ) ware fraudulent and collusive; and the processes not having been served in the mofussil the sales may be held as not binding on the plaintiffs; (ga) that it may be held that Defendants Nos. 1 to 3 have acquired no right under these sales and a decree may be passes against them. The other two prayers are in respect of costs of the suit and mesne profits. The suit, as made out in the plaint, is one for setting aside the sales on the ground of fraud and also on the ground of irregularities pointed out therein. It therefore comes within the ambit of Section 37 of the Act. that section says that all matters relating to execution, discharge or satisfaction of a certificate should be determined by the certificate officer; and that a suit may be brought in a civil Court in respect of any such question on the ground of fraud. This section is analogous to Section 47, Civil P.C., Matters relating to execution of the certificate must be determined by the certificate officer who answers to the executing Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin one year from the date when the sale is confirmed or otherwise becomes final and conclusive. The question therefore is, When did the sales become final and conclusive? By the use of the word otherwise in the third column it is meant that the time runs from the date when the sale is confirmed and takes effect as conclusive or when it otherwise becomes final and conclusive. The starting date therefore for limitation should be the date on which the sale has become final and conclusive and cannot be disturbed by any of the means provided in the law of procedure except by means of a suit to which the article is held to apply. In the present case we find that the sales were confirmed on the 3rd January, 3rd February and 24th February 1919. 14. The suit was brought on 3rd June 1921, Apparently it was brought more then one year after the confirmation of the sale. But it appears that an application was made to the certificate officer to set aside the sales and it succeeded. The sales were set aside on the 19th April 1920. An appeal was taken from this order to the Collector who set it aside and restored the sales on the 18th May 1920. There was a further application for review be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the suit is not barred by limitation. But in the view that I have taken on the merits of the case it must fail. 16. One other submission is made which requires notice. It was suggested that the plaintiffs at any rate are entitled to relief under the Bengal Tenancy Act as their interest in the properties is an encumbrance within the meaning of Section 161, Bengal Tenancy Act and as it has not been avoided, a decree should be made in their favour in respect of their mortgage or purchase of eight annas share in the property. As I have said, the suit is not framed in such a way as to give the plaintiffs any relief under this head. The suit is purely and simply one under the Public Demands Recovery Act and no further relief was prayed for by the plaintiffs in the suit nor can it be given to them in the present state of the pleadings. This question was raised before the Subordinate Judge but as he was of opinion that the sale was liable to be set aside on the ground of fraud, he did not enter any finding upon it. There is no indication that this point was taken before the Court of first appeal. But it may be argued on the other hand that as the plaintiffs were respondents the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w is against them, and the learned advocate, who appeared on their behalf in this appeal, vary properly intimated that he did not challenge that finding. that being so, it appears to me that, the allegation of fraud having been negatived the suit under the provisions of the Public Demands Recovery Act must be held to have failed Basanta Kumar Pal v. Harendra Nath Mukhopadhya A.I.R. 1926 Cal. 107. I may mention here incidentally that though the plaintiffs-appellants disclaim any reliance upon the above-mentioned Act, and seek to base their claim upon what is termed their paramount right under the general law, they did, at an earlier stage of the proceedings, make an application under Section 23 of the Act, and in so doing may be said to have tacitly recognized that it was incumbent upon them to proceed under the Act. The case of superior right now set up was never made in their plaint, nor indeed can it be Said to have been raised in the grounds in this appeal. 21. The third point is that the Court of appeal below erred in holding that the sales had the effect of a sale under a decree for arrears of rent, and were bind-ding on the plaintiffs. The learned District Judge has found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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