P L D 1952 Dacca 440 (PLP)

Mr. Roy relies on the last sentence of section 13 which says that the share or shares sold together with the share or shares not sold shall continue to constitute one integral estate. He draws our attention also to those provisions of section 14 according to which for the arrears of revenue of a small frac tion of an entire estate, the entire estate is liable to be sold in case the sale of such a fractional part of the estate fails to fetch the arrears of revenue for which it is put up for sale. The relevant portion of section 14 of the Act runs thus : If in any case of a sale held according to the provisions of the last preceding section, the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the Collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date, unless the other recorded share or shares, or one or more of them, shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share . Mr. Pakrashi, appearing for the defendant‑respondent urges that the word "estate" in the description attached to section 5 prima facie means a whole estate and that unless a whole estate is under attachment, no notice under section 5 is necessary. In our opinion there is considerable force and substance in the contention of Mr. Roy ; and the contention of Mr. Pakrashi on this point does not bear scrutiny. It appears to us that the same argument as that of Mr. Pakrashi was advanced before H. V. Bayley and W. Markby JJ. when the case of Mohabeer Pershad Singh and others v. The Collector of Tirhoot and others 13 W. R. (1870) 423 was heard by their Lord ships and was remanded. In answer to the argument advanced by Mr. Pakrashi, we may quote the following observations of their Lordships in that case : It is argued, first, that what was under attachment in this case was not an estate, but only a share of an estate. Secondly, that neither the estate nor any share in it was under attachment not all, because when it was placed under the manager appointed under section 243, Act VIII Of 1859, the attachment ceased. Lastly (and the greatest reliance has been put upon this argument), that an estate, in order to come under the protection of the third clause, must not only he under attachment by order of a judicial authority, but must also be managed by some revenue authority. I think we may dispose of these objections in a great measure by considering the object of the Legislature in mak ing this provision. The only thing, as pointed out by Mr. Justice Bayley in the course of the argument, upon which a revenue authority would act, is the whole estate bearing a number on the Collector's rent‑roll, or share of an estate which, by regular butwara, has formed a separate number on the Collector's rent‑roll, or the share of an estate for which a separate account has been opened under Act XI of 1859 ; and if any portion of the revenue be in arrear, the whole estate is endangered. Now, it may be fairly taken that the object of the Legislature in making the provisions contained in this section was to give special protection in cases where the circumstances are such as that, without any omission on the part of the person interested in protecting the estate, there might be delay in the payment of the revenue; and it is perfectly obvious that this difficulty occurs in all case where any portion of the estate liable for Government revenue is under attachment. If any portion of an estate is under attachment for debt, the owner of that portion is not always the person really interested in the payment of the revenue, but either the person who has attached it or the CO‑Sharers. When it has been put under the control of a manager ap pointed by the Civil Court, the owner of the share, though in that case he is probably interested in the payment of the revenue has not the means of paying it, the whole rents and profits of the estate being taken out of his control and handed over to another person ; and that difficulty arises just as much whether the estate is under the management of a person appointed by and wholly responsible to the Civil Court, or whether it is under the management of a Collector or other Revenue Officer. Moreover, the terms of the Act appear to coincide with the view of the policy of the law. The word 'estate' in the description attached to section 5 might, indeed prima facie mean a whole estate; but I do not think that the object of the Legislature would be served by giving it that narrower signification, because it was clearly intended to apply to such shares as are referred to in the first portion of the section. The meaning of the word 'estate' must, therefore, be extended somewhat beyond its prima facie meaning . . . . . ." Further, from the provisions of section 5 of Act XI of 1859 it seems to us that advisedly the Legislature has mentioned, "No estate and no share or interest in any estate" in the first part of section 5 and "estates under attachment" in clause 3 of that section. Reading these together, this has been done in our opinion in order to emphasise that in case of an attachment of an estate, wholly or partially‑for the whole includes a part for the recovery of arrears of revenue neither the entire estate nor a portion of that estate shall be sold without a notice under section 5 Presumably, this is for the benefit of attaching creditor, co‑sharer, prospective buyer, debtor or defaulter and other parties concerned, as it was also rightly observed by Ainslie J. in the above case of Mohabeer Pershad Singh and others v. The Collector of Tirhoot and another when after remand it came up again before the Division Bench of the Calcutta High Court. "The property being under attachment by order of a Civil Court, the Collector was bound to give the parties interested therein warning of the impending liability to sale by the issue of the notices prescribed in section 5, Act XI of 1859. This section does not extend the time allowed for payment of arrears of estates attached by any judicial authority, but it provides that certain steps shall be taken, at least fifteen clear days before the latest date for payment of arrears fixed according to section 3 of the Act to call attention to the existence of arrears, and the near approach of the time when the estate will be liable to sale. Clearly the object of the law is to give a special warning to parties who have lost the control of their own estates, owing to attachments by judicial authority, and probably also to the attaching Courts and managers that they may make such arrangements, as the cir cumstances of the case required, to protect the estates against defaults which very often would be (as in this instance) defaults of co‑sharers. When the law says that a certain party's estate shall not be sold for arrears without public notice of the existence of the arrear, the non‑issue of notice would naturally induce a belief that the estate is in no danger. A man who lives fifty miles from the Collectors' treasury and one mile from the Munsif's Court, may not think it worth while to go all the way to the former, when he knows that he can, in the ordinary course of business, ascertain at the latter whether there is any danger to his estate; and if, when the proper time comes, he makes inquiries at the Munsif Court, and ascertains that no notice has come from the Collector, surely he may rest at home in peace and take it for granted that the manager of the attached share or some co‑sharer has made the estate safe, and that their is no arrear due. In this connection we may also quote the following from the judgment of their Lordships of the Privy Council (Judg ment of His Lordship Ameer Ali) in the case of Maharajah Sir Raveneshwar Prasad Singh and others v. Baijnath Ram Goenka and others 42 1 A 79. "Act XI of 1859 is a stringent enactment for the realisation of arrears of revenue ; at the same time it provides certain safeguards for the protection of the interests of the defaulter so that he may not be unnecessarily prejudiced. Among these safeguards are the provisions of 5 and 6 for the issue of noti fications of sales specifying the properties to be sold, and their due publication in accordance with the law. An exact compliance with the requirements of the Act is considered so important by the Government that the Board of Revenue has issued special rules, with forms of notification necessary in the case of estates or shares of estates advertised for sale. The object of the law requiring specification of the properties to be sold, as well as of the Board's rules, is clearly to enable likely purchasers among the public to know exactly what is going to be sold, and to ensure thereby reasonable competition." Mr. Roy was quite right in relying on the ruling of the Privy Council in the above case of Bunwaree Lall Sahoo v. Mohabeer Prashad Singh and others (supra) in which ultimately an appeal was preferred before their Lordships of the Privy Council. In that case the suit was brought to set aside a sale for arrears of Government revenue in respect of a share in an estate which was separately liable for a portion of the revenue due from the whole estate and with the exception of one por tion of this estate, the rest were attached by order of the Civil Court. In that case after quoting the wording of section 5, their Lordships of the Privy Council observed : "The words of the Act being plain, it is not necessary to speculate upon the reasons which may have induced the Legislature to pass them ; but if such reasons were to be sought, one has not far to go for them. A creditor obtaining an attachment under Act VIII had an inchoate interest in the land ; his debtor could not alienate it, and no judgment creditor, even if his judgment were prior, who obtained subsequent execution, would have any rights against him. It may be said that the estate was virtually in the custody of the law. That being so, the judgment creditor had an obvi ous interest in knowing whether or not the revenue was paid, in other words, in knowing whether or not the estate in which he had an interest was forfeited. It may well be that the Legislature may have thought that, under those circumstan ces, he was entitled to be informed whether the estate was or was not liable to forfeiture, in order that he might step in, as he might under section 9 of the same Act, and pay the revenue and prevent the forfeiture. "It has been further argued that the words arrears of estate under attachment must refer to estates the whole of which are under attachment, and that if any portion or any share of an estate, however small, is not under an attachment, the clause (8) does not apply. In their Lordships' opinion, this would be to place again an unduly narrow construction and to limit the meaning of plain words. It appears to their Lordships that an estate any portion of which is under attachment cannot be said to be free from attachment, and is, in fact, subject to attachment. The reasons why the Legisla ture should direct information to be given to a creditor would apply as much to the case of the creditor having a lien on a small, as to one having a lien on the whole or a large part of the estate." We may also refer to the case of Monindra Deb Roy v Srce Srec Haneswari Thakurani and others 4 C W N 271 ; in which the case of Bunwaree Lall Sahoo (supra) was also strongly relied upon and it was held that notice under section 5 was imperative when the estate notified for sale was under attachment by a Civil Court, even though the fact of such an attachment might not be known to the Collector at the time of the sale. Mr. Pakrashi, the learned Advocate for the respondent, next argues that even assuming that the present separate account No. 266/1 which is not attached is hit by clause 3 of section 5 because of attachment of other separate accounts Nos. 266/2 and 266/3 notice under section 5 is not necessary in the present case as he takes exception to the findings of the learned Subordinate judge that the latter two separate accounts were attached by Civil Court and he has filed objection thereto. It is true that the question as to whether the provisions of section 5 will apply or not, will depend on the determination of the question whether the other two separate accounts of Touzi No. 266 were, in fact, attached as alleged by the plaintiffs. On this point the learned Subordinate Judge has examined and discussed whether the provisions of Order XXI, rule 54 of the Code of Civil Procedure, have been complied with or not. As to the first two requirements of these provisions, namely, whether the order of attachment has been proclaimed at some place on or adjacent to the property in question by beat of drum or other customary mode and as to whether the copy of the order was fixed on the conspicuous part of the property, Mr. Pakrashi states that he has no quarrel with the findings thereof of the learned Subordinate Judge. But Mr. Pakrashi does not accept his finding that the affix ing of the order of attachment on a conspicuous part of the Court which served the same, is sufficient compliance of Order XXI, rule 54 of the Code of Civil. Procedure ; and he also does not accept the finding of the learned Subordinate Judge that the copy of the order of attachment was fixed in the office of the Collector of the district in which the property in ques tion was situated. It seems to us that Mr. Pakrashi is right when he says that the learned Subordinate judge has construed "Court house" as the Court which effected the service of the order of attachment and not the Court which issued attach ment; and holding that view he found that the requirement of Order XXI. rule 54 of the Code of Civil Procedure, in this respect was complied with. Mr. Roy for the appellants points out that the provisions under Order XXI, rule 54, do not clearly state whether it is the Court house which effected the service or the Court house which issued the attachment and that in any case there is evidence on record to prove that the order of attachment was also affixed on a conspicuous part of the Court house at Rajshahi, which issued the order of attach ment. In this connection he referred to the.evidence of P. W. 19, Ganganath Tarafdar, who states as follows : I was to see if the processes were duly served. One copy of the writ of attachment that was served in the locality, was also affixed to the Notice Board of this Court. The writ of attachment that was issued by this Court to the Collectorate was also affixed to the Notice Board of the Collectorate. In cross‑examination also he states : "It was my duty to see before filing of the processes for serving under Order 21, Rule 66, in Court whether the writs of attachment, were duly affixed to the Notice Board . . . . ." Mr. Pakrashi, however, states that copy of this notice affixed on the Notice Board was not produced in Court; but it is hardly reasonable to expect that the party should produce this copy on the date when he deposed, which was the 18th April 1947, and the suit was instituted on the 15th November 1940. Besides, Mr. Roy has also drawn our attention to the fact that the records of the notice kept in the Civil Court were also destroyed as it will appear from Exh.

28. It appears that no evidence to rebut the evidence of P. W. 19 was given and the learned Subordinate judge who had the opportunity of seeing P. W. 19 in the witness box not only accepted his evidence but described him as a very convincing and straightforward witness, who had no motive whatsoever to depose in favour of the plaintiffs or against the defendant. This, of course, he has observed in connection with the other point whether the copy of the attachment was affixed in the office of the Collector of the district ; but that does not mean, as suggested by Mr. Pakrashi, that the learned Judge did not believe his evidence as to the affixing of the copy of the attachment on the Notice Borad of the Court of the Subordinate Judge, who issued the order of attachment. There, it seems, that the learned Subordinate judge was under a misapprehension that it was not necessary to prove that such a copy was affixed on a conspicuous part of the Court which issued it, but only on that of the Court which served the order. Being of that view, it seems that he did not take trouble to refer to the evidence, of P. W. 19 to the effect that the copy of the order was also affixed on a conspicuous part of the Court of the Subordinate judge at Rajshahi who issued the order'. We have, however, been taken through the entire evidence of P. W.

19. Not only his evidence has gone unre butted as already stated, but we are also satisfied that he is a straightforward and truthful witness who has stood the test of cross‑examination; and we see no reason why we should not accept his evidence on the point that the copy of the attachment was also affixed on the Notice Board of the Court which issued the order of attachment. Therefore, not for the reasons stated by the learned Subordinate judge but on the evidence of P. W. 19 and other evidence, and the circumstances of the case we hold that a copy of the order of attachment was also affixed on a conspicuous part of the Court which issued the writ of attachment. As to the point whether a copy of the attachment was affixed in the office of the Collector of the district, we have also carefully examined the evidence, both oral and document ary. It appears from Exh. 37A (Order to Nazir to deliver possession of estate sold), 20 and 21 series (Land Revenue, Road and P. W. Cess Touzi Ledger and, etc,), 30 (Certified copy of order sheet in Exh. case No. 18 of 1939, money suit of the Court of the Subordinate Judge, Rajshahi), Exh. 37 (d) 5, and the evidence of P. W. 19 that there are sufficient materials for holding that notice was duly affixed in the office of the Collector of Rajshahi. Besides, we agree with the learned Subordinate judge that the presumption under ection 114, Illustration (e) of the Evidence Act was, not rebutted : further, as already stated, there was the evidence of a straightforward witness like that of P. W. 19 ;and. no evidence was adduced by the defendant to rebut his evidence on this part either. So we are in entire agreement with the learned Subordinate Judge on this point and we hold that the copy of the order of attachment, Exh. 37, was duly affixed in the office of the Collector of Rajshahi. In view of our above finding, it remains for us to consider whether the mere non‑service of notice under section 5 will entitle the plaintiffs to get the sale set aside. It is conceded by Mr. Roy and it is also settled law now that in view of the provisions of section 33 of Act XI of 1859, the sale cannot be set aside only on the ground unless the party affected by it can satisfy the Court that such an irregularity has caused substantial injury to that party. But in answer to question 3, namely, whether the price fetched at the sale is really inadequate and the plaintiffs did suffer substantial loss by reason thereof referred to by the learned Subordinate judge he has found that the property in question was worth about at least Rs. 50,000, on the date of the sale, that it was sold only at an unduly low price of Rs. 4, 010 only and this was due to the absence of notice under section 5 of Act XI of 1859 ; and this finding of the learned judge has not been challenged before us, nor has Mr. Pakrashi advanced any argument on the questions of Court fees and proper framing of the suit, although at the time the case was remanded these two questions were left open for argument at the time of hearing before us. That being so, for the reasons stated above, we are satisfied that all the findings of the learned Subordinate Judge after remand in favour, of the plaintiffs are correct; that the other two separate accounts i.e., No. 266/2 and 266/3 of parent Touzi No. 266, were attached by a Civil Court, that although the separate account No. 266/1 of Touzi No. 266 was not attached, the present case comes within clause 3 of proviso of section 5 of Act XI of 1859 and that on account of this non‑compliance of section 5 by Collector the plaintiffs have sustained substantial injury with the result that the property worth Rs. 50,000 was sold for only Rs. 4,

010. The result, therefore, is that this appeal is allowed and the judgment and decree of the learned Subordinate Judge, dated the 13th February 1942, are reversed and the suit is decreed. The objections are accordingly, rejected. There shall be no order as to costs, as the irregularity complained of was due to the mistake on the part of the Collector who sold the property without giving notice under section 5 as he was required to do. GUHA, J.‑

I agree. A. H. Appeal allowed.