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Sita Nath Mondal V/S Soleman Molla and Others.

    Civil Rev. Case No. 202 of 1946

    Decided On, 07 January 1946

    At, High Court of Judicature at Calcutta

    By, THE HONORABLE JUSTICE: BISWANATH SOMADDER

    For Petitioner: Biswanth Mukherji And For Respondents: Abinash Chandra Ghose



Judgment Text


1. This is a Rule obtained by one out of three judgment-debtors against whom Opposite Party No. 1 obtained a rent decree, and is directed against an appellate order by which the Petitioner's application for setting aside the sale held in execution of the decree was rejected. The Court of first instance had allowed the application, but that order was reversed on appeal. The application was made on the usual grounds of suppression of sale processes. The decree under execution being a rent decree, the proceedings were governed by the provisions of the Bengal Tenancy Act. Sec. 163, sub-sec. (1) of this Act requires that where the Court admits the application for execution, it shall issue a combined order of attachment and proclamation in the prescribed form. Sub-sec. (2) of that section sets

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out the particulars which must be specified in the sale proclamation. Sub-sec. (3) then lays down certain specific nodes of publication of the sale proclamation. It may be pointed out that sub-sec. (3) was introduced for the first time by the bengal Tenancy Amendment Act of 1928, By that amending Act the use of a single form for the order of attachment and the proclamation of sale was also introduced, the object being to simplify the procedure for execution of rent decrees. Sub-sec. (5) specifically provides for three methods of publishing the sale proclamation in cls. (a), (b) and (c), cl. (d) authorising publication " in such other manner as may be prescribed." It was the Petitioner's case that the requirements of none of the first three clauses of sub-sec. (5) had been complied with. There was no beat of drum on or near the land comprised in the holding in default and no fixing up of a copy of the sale proclamation on such land as required by cl. (a). Neither was there any copy affixed in the Court house as required by cl. (b). There had also been failure or omission to send to the judgment-debtor by registered post a concise statement of the order of attachment and proclamation as required by cl. (c). The learned Munsif found against the Petitioner so far as publication of the sale proclamation in accordance with cls. (a) and (b) was concerned. As regards service of the concise statement by registered post under cl. (c), he found that it had been duly sent by registered post but that it had not been received by the Petitioner. The learned Munsif took the view that cl. (c) requires not only that the decree-holder must send the concise statement by registered post, but also ensure that it is actually received by the judgment-debtor. The judgment-debtor's case was that the concise statement had been sent to Rajapur, whereas he had been residing in another village, Sonakhali, thirty-six miles from Rajapur. No formal proof had been given in the case of the despatch of the concise statement, but the document itself which was transmitted by post is on the record and it bears, on the face of it, an endorsement " left." There is no evidence by whom or in what circumstances this endorsement was made, but the learned Munsif read it in the light of the evidence adduced on behalf of the Petitioner and held that it meant that the Petitioner had left the place to which the concise statement was directed. The learned Munsif was of opinion that in these circumstances the requirements of cl. (c) of sub-sec. (3) of sec. 163 could not be said to have been complied with, and as this was a material irregularity and it caused substantial injury to the Petitioner, as was evidenced by the inadequate price which was fetched at the sale, he set aside the sale under sec. 174 (3).

2. On appeal the learned Subordinate Judge took a different view. He definitely refused to accept the Petitioner's case that at the material time he had been residing at Sonakuali. On the other hand, he found that this story that the Petitioner had ceased to reside at Rajapur and had settled at Sonakhali was false and had been invented for the purpose of the application. Upon the evidence the learned Subordinate Judge found that at the time of the execution case the Petitioner was residing at Rajapur. It follows, therefore, that the basis on which the Petitioner rested his case of non-compliance with the provisions of cl. (c) of sub-sec. (3) of sec. 163 failed. From that point of view the endorsement "left" on the registered cover was in the opinion of the learned Judge of no value. In other words, according to him, it must be taken that the concise statement had been delivered to the judgment-debtor. The learned Judge, however, went on to observe that even if that was not so, the requirements of cl. (r) must still be taken to have been satisfied, because all that the Statute required was sending of the concise statement by registered post to the judgment-debtor and not actual receipt of it by him, There can be no doubt that in the present case the concise statement was duly sent to the proper address, and it was, therefore, held that it was immaterial whether the document actually reached the hands of the judgment-debtor. It is this construction of cl. (c) of sub-sec. (3) of sec. 163 that has been strenuously challenged on behalf of the Petitioner.

3. Having regard to the facts and circumstances of the case, I think the learned Judge was right in the view he took. The learned Judge might have referred to the relevant provision of sec. 28 of the Bengal General Clauses Act which is in these terms:

Where any Bengal Act made after the commencement of this Act authorises or requires any document to be served by post, whether the expression " serve" or either of the expressions " give" or ''send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document....
4. This corresponds to sec. 27 of the General Clauses Act. In the case of Baluram Ramkissen v. Bai Pannabai (1901) I. L R 35 Bom. 213, a summons was sent by registered post addressed to the first Defendant at Navalgarh in the State of Jaipur and purported to be sent in accordance with the provisions of Or. 5, r. 25, of the Civil Procedure Code (Act V of 1908). The cover was returned with an endorsement in the vernacular which was translated as follows:-" Refused to take. The handwriting of Chunilal postnian'' It was held that as it appeared that the cover was properly addressee to the first Defendant and had been registered, duly stamped and posted, the Court was entitled to draw the inference indicated in sec. 27 of the General Clauses Act and to hold that there was sufficient service. Robertson, J., pointed out that no hard and fast rule could be laid down as to when the Court could accept service as sufficient, where the cover was returned unserved; each case was to be decided on its own particular facts and Circumstances.. If I may say so with respect, that seems to be a sound practical rule. Where the judgment-debtor comes with a definite case that he was not residing at the village to which the registered letter was directed, and he fails to make out that case, it will not do for him to rely on the mere endorsement on the registered cover, assuming it had been made by the postal peon who had taken out the letter for delivery, for the purpose of repelling the statutory inference of proper service. I must accordingly hold that in this case, notwithstanding the endorsement " left " appearing on the cover, the service was sufficient in law, and in this view of the matter it is not necessary to consider separately the other point made by the learned Judge on the question of construction of cl. (c). It is sufficient to hold that upon the facts the requirements of cl. (c) read with sec. 28 of the Bengal General Clauses Act were duly complied with. The only ground which was left to the Petitioner for setting aside the sale thus fails. The Rule is accordingly discharged with costs-hearing-fee, one gold mohur.

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