JUDGMENT [ENTITY], J.
1. This is a suit to set aside a sale held under the [ACT] as amended by [ACT].
2. The plaintiff was the owner of a house at 15 Dixon's Lane in Calcutta and of four collieries in the district of Burdwan. He, on the 17th October 1901, mortgaged this house and a six-annas share in the collieries to the defendant [ENTITY]. His contention is that all road-cess in respect of the collieries was payable by this defendant who, however, contests his liability. Road-cess which is a public demand, was admittedly in arrear and a certificate was admitted duly made and filed for its recovery under the Act by the Certificate Officer of Burdwan, Notice under [SECTION] is said to have been served on the 12th July 1902. This is denied. I will deal with the point later. On the 25th July directions were given to enforce the certificate and the case was transferred for execution under [SECTION], [SECTION] of the [ACT] to the Certificate Officer of the 24 Pergunnahs for execution. This transfer has been impugned but it appears to me to have been in order, and or have fulfilled the requirements; of [SECTION] Clause (3) of the Act. On the 27th July 1902 the plaintiff filed an objection before the certificate officer of the 24-Pergunnahs and asked for stay of execution to enable him to move before the Certificate Officer at Burdwan. This was granted: and on the 29th September the plaintiff put in a petition of objection before the Certificate Officer of Burdwan, alleging (Exhibit 02) that no notice had been served, that the certificate was issued "illegally mproperly and erroneously," that it was inoperative and asking to be relieved of the demand. This petition appears to me to have been made under [SECTION]. It is said it is not such a petition as there was no denial of liability. There clearly however was such a denial. It may be the fact that it was never contested that load cess was due from some one and that [ENTITY] should pay it but the plaintiff alleged that he was not liable and indeed contended that the certificate was absolutely inoperative. Certain adjournments were granted and before the petition waft heard and on the 10th January 1903 the plaintiff filed a further petition stating that [ENTITY] had purchased the colliery with all liability for road cess, that he was in possession and he therefore again asked to be relieved from the "improper demand." The objection was heard on the 28th January 1903 and disallowed It was pointed out by the Certificate Officer that [ENTITY] had paid the cesses from the date of his entry into possession and that the plaintiff was liable for the period antecedent to that date The plaintiff again petitioned (Exhibit 04) asking that the amount due under the certificate might be realised by the attachment of the moveable property of the colliery. This petition was on the 2nd March 1903 disallowed on the ground that the colliery was in the possession of others and the moveables in it could not be sold to satisfy the plaintiff's liability. On the 5th March the plaintiff again petitioned (Exhibit 05) alleging that [ENTITY] was liable to satisfy the demand and asking that the certificate might be realised as requested in the former suit.
3. On this [ENTITY] was asked if he had any objection. He had The order sheet records that the plaintiff's pleader admitted. liability but contended that it should be satisfied by sale of the moveable property of the colliery. The petition was disallowed and on the 28th March 1903 the Certificate Officer of the 24-Pergunnahs (whose hand had meanwhile been stayed) was again directed to take action to enforce the certificate. Thereafter proceedings were held in the 24-Pergunnahs.
4. On the 19th May 1903 a warrant was issued against the moveables of the plaintiff but these were found to be already under attachment under a decree of the High. Court. Notice was then issued under [SECTION] of the Code. The plaintiff appeared and as though he knew nothing about the matter, asked for time "to enquire from his Mofussil agents as to the debt due." This was refused and a warrant of arrest issued. This could not be executed as the plaintiff absconded, execution therefore had to be taken out against his immoveable property and the house in suit was sold to the defendant [ENTITY] on the 22nd February 1904 for Rs. 230 only. As however I have already stated it was then under mortgage. I gather from the order sheet of the 29th March 1904 that the plaintiff took objections which must have been under [SECTION] of the Code The case was adjourned. On the 4th May the objector was absent on the 19th May his witnesses were not present. On the 8th June the plaintiff was absent his mukhtear stating that he was ill. On the 15th June he was absent and no One appeared on his behalf. On the 5th July 1904 the order was confirmed. Application was made for a review which was refused. On the 28th July 1904 an entry was made of satisfaction of the Government demand some 2 1/2 years after notice was first issued under [SECTION] of the Statute enacted for the speedy recovery of public demands.
5. The purchaser then had to sue the plaintiff for use and occupation of the premises sold and obtained a decree and applied for execution. The plaintiff retained and now apparently retains possession of the house and seeks an injunction restraining execution. On the 3rd July 1905 he filed the present suit.
6. Several objections are now taken which may be classified under two general heads, viz.: firstly an objection to the Validity of the sale certificate and secondly objections to the validity and regularity of proceedings taken in execution to enforce that certificate.
7. On the first point it is contended for the plaintiff that it is the service of the notice under [SECTION] which gives to the certificate the force and effect of a decree: that if (as is alleged to be the fact here) there is no notice there is no decree, and if there is no decree, a sale held under a certificate which by reason of absence of notice has not acquired the force of a decree, is invalid as having been altogether made without authority. It is argued that if the certificate has not acquired the character of a valid decree the foundation for the proceedings is gone and in one sense the proceedings are without foundation and void. In support of this contention a number of decisions are relied on: [PRECEDENT], Saroda Charan Bandapadhaya v. Kista Mohun Bhattacharjee (1897) 1 C.W.N. 5[SECTION], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]. These authorities support this contention except the first, the Privy Council decision, upon which they purport to be based but which is in fact the other way.
8. The three matters to be considered on this first line of argument are: was the notice served in fact, if not, what is the effect of such non-service and thirdly limitation.
9. It was argued on the strength of the decision in [PRECEDENT] that when the fact of service of notice is denied the onus is on the party alleging service to prove it. In other words a party whose property is sold has, it is said, merely to file a plaint at any time within six years making an allegation however unfounded of want of notice and he is entitled to a decree if no proof is given on the other side, though inability to give such proof may be due to the death (as has happened here) of the serving peon. The ordinary rule of evidence is that a person who alleges a fact must prove it, and if this decision holds that in a case such as that before me this rule is not applicable, I am unable to agree with it. Both sides have however gone into evidence upon the question of notice and every fact relating there to is contested.
10. "Adult" in [SECTION] of the [ACT] does not mean as suggested a person who has attained majority within the meaning of the Majority Act, but a person of such an age as to be capable of and responsible for the due communication of the notice to the member of the family for whom it is intended. Here [ENTITY] the plaintiff's relation on whom the notice is said to have been left was admittedly about [SECTION] and in my opinion an adult within the meaning of the section, having attained the. age of majority according to Hindu Law. Assuming however for the purpose of argument (though as I have said the facts are in contest) that the peon went to the plaintiff's dwelling-house in Dixon's Lane that the plaintiff could not be found; and that the service was made on [ENTITY]. This would not be sufficient unless the latter was a member of the plaintiff's family residing with him. The question is not whether notice is actually served but whether it is served in accordance with the provisions of [SECTION].
11. Both the plaintiff and [ENTITY] are the persons who. have the best means of knowledge upon the point. I am not prepared to say that they have perjured themselves when they deny that [ENTITY] was a resident member of the plaintff's. family though he from time to time visited them. The defendants give evidence of some admission made by [ENTITY] in the year of the alleged service in answer to a casual enquiry. Even if made the person may have drawn a wrong inference from what was said. I am unable to hold that [ENTITY] was residing with the plaintiff in the sense in which that term is used in [SECTION]. The result of this finding is this that even assuming, (though it is unnecessary to and I therefore do not decide it) that service was in fact effected on [ENTITY] as a person believed to be an adult male member of the plaintiff's family residing with him, he was not in fact such and therefore there has been no service of the notice under [SECTION] of the Act.
12. It becomes therefore incumbent upon me to examine the question of law raised on the assumption of the absence of notice under that section.
13. The plaintiff's contention that it is the service of the notice under [SECTION] which gave to the certificate the force and effect of a decree, has in its favour all the cited cases except that of the Privy Council upon which they purport to be based. I was at a loss to discover the cause of that common consensus of opinion in itself so uncommon as regards matter's arising under this much disputed Act until I referred to the reporter's headnote of the Privy Council decision in [PRECEDENT] upon which all the subsequent decisions are based. The head-note runs as follows: "Held that according to the true construction of [SECTION] of the [ACT] there is no foundation for a sale thereunder until a certificate has been made by the Collector strictly in manner prescribed thereby specifying the sum due and the person from whom it is due Held that such certificate when duly made has, after service of notice thereof under [SECTION], the effect of a decree so far as regards the remedies for enforcing it."
14. It is admitted as it indeed must be upon a reading of the judgment itself) that there is Nothing in it to warrant the reporter's head note in the particulars italicised. His mistake has, however, as is not infrequently the case, proved infectious and the decision of the Judical Committee has in later judgments of this Court been cited as an authority for the proposition which the reporter supposed it laid down and not for what it actually held. What was in fact held, is to a directly contrary effect. In the case dealt with there was no certificate at all and therefore the whole basis of the proceeding was gone but assuming that there is a certificate, the Judicial Committee at page 781 point out the effect of it as follows: "The proceeding in the first instance is apparently ex-parte the certificate is to be made by the Collector in a certain form and filed and when the certificate is filed it has the effect of a decree against the person named as debtors in the certificate so far as regards the remedies for enforcing it, and when served it also binds their immoveable property." Similar language (which indeed is that of the statute itself) is used by the Privy Council in [PRECEDENT]. What then the Privy Council have held is this: There must be a certificate and such certificate must be duly made, for if there be no certificate or one not duly made the basis for all subsequent proceedings there under is gone. It has then to be filed. Upon such filing it has the force and effect of a decree not for all purposes as is provided in [SECTION], bat so far only as regards the remedies for enforcing the certificate ([SECTION], This again is "subject to the provisions of this Act." These words refer to the special remedies for enforcing the decree and not to the decree itself. They do not mean as has been argued that the certificate has only the force and effect of a decree if and when notice is served under [SECTION] (nor is that what the Privy Council say) but that it can be enforced as a decree subject to the provisions of the Act. Thus it may according to those provisions cease to have the effect of a decree. In the first instance it has a conditional character. It has been made ex-parte. The Legislature has thus under [SECTION] given an opportunity to object to it and power under [SECTION] to set it aside. A suit may be brought to cancel it under [SECTION]. And it is only when no suit is brought or if a suit is instituted when it is decided against the judgment-debtor that it becomes absolute and has the force and effect of a final decree of a Civil Court " to all intents and purposes."
15. In the sense and subject to the conditions stated a duly made certificate then has on its filing the fore and effect of a decree. A decree is however none the less a decree because it is not executed nor even because it cannot be executed for some cause not directly affecting the validity of the decree itself as for instance limitation. If, however, it is to be executed steps must be taken for the purpose. Ordinarily this is done by attachment as a preliminary to sale. The Act however provides that in lieu of attachment under [SECTION] of the Code, notice shall issue to the judgment-debtor. The effect of service of this notice is as if the property of the judgment-debtor had been attached. To use the words of the Privy Council the certificate on filing has the effect of a decree "and when served it also binds their immoveable, property." What then is the effect of non-service. The effect is the same as if there had been no attachment. There is something which is capable of being enforced as a decree viz. the certificate. Until however service of notice no particular property is bound by that decree just as in the case of an ordinary money decree before actual attachment. If however property is sold notwithstanding, the position is that of sale without a prior attachment. There has been an irregularity but the sale is not a nullity on that account [[PRECEDENT]] and still less can such irregularity affect the decree itself.
[SECTION]. Were it not however for the decision of the Privy Council I should have felt myself bound by the judgments cited on behalf of the plaintiff notwithstanding that a reading of the Act itself led me to form different conclusions.
17. It has been pointed out to me that in a judgment to which I was myself a party [[PRECEDENT]] it was assumed that non-service of the notice under [SECTION] affected the validity of the decree. That is so; but it was not necessary to determine the point which was apparently assumed for the purpose of illustrating the distinction there made between matters which affected the validity of the decree and those which touched the validity or regularity of proceedings taken under it. The matter dealt with was the applicability of [SECTION] of the Code. However this may be I find the assumption to be on more careful consideration erroneous. The decision of the Judicial Committee is in my opinion a clear authority for the contention urged by learned Counsel for the defendants a contention which appears to me supported by the terms of the Act itself and I hold that it is the due making and filing of the certificate which gives it the effect of a decree as stated in [SECTION] and that there force non-service of the notice under [SECTION] does not affect the validity of the certificate itself.
18. The Act in fact does not give that importance to service of notice which is sought to be assigned to it and that notice. is required only to bind the immoveable property. Take for instance [SECTION]. The Certificate Officer may under the circumstances stated in that section at any time after making the certificate attach moveable property. No doubt this has some analogy to attachment before judgment but under Sub-section (3) the property may be sold to satisfy the certificate after a petition is determined under [SECTION] and such a petition may be determined where no notice has been duly served. Take again a stronger instance: [SECTION]. This Section assumes that notice may have not been duly served. Is the whole proceeding then bad? On the contrary if notice has not been served the judgment-debtor may within 30 days after execution of process to enforce the certificate file a petition of objection. And this petition is to be heard. Is it reasonable to suppose that this hearing is to take place at the cost of time, trouble, and expense if the non-service of notice has already made the whole of the anterior proceedings a nullity. The Court in those proceedings considers the liability of the judgment-debtor the service or non-service of notice being material only so far as the fixing of the date from which the 30 days are to run. According to the plaintiff's contention when notice has hot been served a party can petition under [SECTION] and take his chance of a favourable decision. If unfavourable he can then say that the Court has wasted its time in determining the matter at all and that its decision and all proceedings prior and subsequent to it are worthless and without jurisdiction. Then again under [SECTION], interest on the certificate runs from the date oh which it has been filed. Lastly, under [SECTION] the absence of service of notice is no ground for the cancellation of the certificate. In short the Legislature has looked to the merits and not to any technicality. The real question of importance is whether the money is due for which the certificate is made (provided that the certificate is duly made). In this as in other cases the judgment-debtor must have notice and be heard. Provision however is made for this in [SECTION] by the declaration that time does not run against him where notice under [SECTION] has not been served until be receives notice by actual execution off process. Then under [SECTION] he is allowed to sue.
19. The only suit contemplated by the Act is one to have the certificate cancelled or modified on the grounds mentioned in [SECTION]. If however the certificate was wholly bad as contended for by the plaintiff then there is no necessity to have recourse to the Act at all. The suit would be maintainable on the ground that the plaintiff's property had been taken under colour but without the authority of legal, process. For such a suit it would be necessary to establish that there was no authority to, sell because there was no decree. This is sought to be done by allegation and proof of want of service of notice under [SECTION]. I hold however that the certificate was itself a good certificate and this ground of claim fails.
20. Limitation has also been pleaded to this part of the case. 20. There is no doubt that the whole scheme of the Act is to provide a short period of limitation. Facility is given under the Act to attack the certificate in the Certificate Court and by a. regular suit, the period for which however has been cut down from one year to six months.
21. It is very desirable that questions relating to the service of notice should, if they can be raised at all, be raised and decided at, the earliest opportunity. The serving officer may as in the present case have died and evidence be not procurable on either side. It is submitted on the authority of [PRECEDENT] that though a suit to set aside the certificate is barred under [SECTION] and [SECTION] of the Act more than six months having expired and though the ordinary limitation for setting aside a sale is one year, the plaintiff has six years when the notice under [SECTION] is not served. That decision is based on Saroda Charan v. Kista Mohun (1897) 1 C.W.N. 5[SECTION] a case decided under the Act of 1880 and [ENTITY] J. who was a party to that judgment decided the latet case of [PRECEDENT]. This was a suit to ser aside a sale on the ground amongst others of want of service of notice under [SECTION] and it was held that [SECTION] and [SECTION] of the Act barred a party who though not served with a notice Under [SECTION] (as the plaintiff in this case did) put in a petition of objection under [SECTION] and did not sue Within 6 month of the date of the determination of the petition. In the judgment relied on neither this case nor (in this connection) the Privy Council decision [PRECEDENT] was referred to. The Privy Council decision was a stronger case than the present one, as there was no certificate at all. Yet the Judicial Committee were of opinion that the one year limitation under [SECTION] of the [ACT] would have been applicable were it not that the confirmation of the sale having been within that period limitation was not in fact a defence to the action. Were it the fact that by reason of the absence of Service of notice the certificate was invalid and the Sale there under therefore a bad sale, I should have held on the authority of the decision of the Judicial Committee that this suit was barred by [SECTION]. In the view however which I take of this part of the case the question of limitation does hot arise. I am how considering the case simply from the point of view of absence of notice under [SECTION] and assume for the purpose of this finding that there is ho other objection to the certificate proceeding. If that were so then in my opinion, a suit would not lie to get aside a sale on the ground that there was no valid decree in execution of which it was held. Nor does it appear to me to be reasonable that where it is admitted that there was an arrear of road cess and a certificate is therefore duly made and filed and notwithstanding absence, of notice under, [SECTION] or defective notice, a party (as here) appears, is heard and reheard and adopts the proceedings for two and a half years, that it should be open to him to say at their conclusion that though the proceedings were otherwise regular they must be declared to be wholly bad simply and solely because of the absence of or defect in the notice given for the preliminary purpose of attaching the property subsequently sold.
22. A suit to set aside a sale on the sole ground that the decree under which it was held was an invalid decree, simply because of absence of notice under [SECTION] would in my Opinion fail because the proposition of law on; which it is founded, viz., that absence of notice affects the validity of the decree is unsound
23. It is not necessary therefore to decide within what period of time a suit for such a purpose should be brought.
24. If it is said that the absence of notice is an irregularity, then before confirmation it would have to be shown not by suit but under [SECTION] of the Code that it was material and that it caused substantial injury before the sale could be set aside and, after confirmation the sale, certificate covers all irregularities.
25. Want of notice under [SECTION] is however not the only objection to the suit. The second ground of objection assumes that the decree is a valid decree but attacks the jurisdiction of the Court of execution and the legality and regularity of its proceedings. The heads of argument are firstly that the. certificate officer had no jurisdiction to transfer the execution of the decree. With this point on the merits I have already dealt. Secondly it is said that the Certificate Officer of the 24-Perganahs had no jurisdiction as regards immoveable property in Calcutta. This however is not so, as the Collector of 24-Perganahs is ex-officio Collector of Calcutta Calcutta Gazette, 9th June 1895, Part 1 page 679 and the Chief Officer in Charge of the Revenue Administration of Calcutta and the Certificate Officer who acted in the matter is his subordinate. Thirdly it is contended that assuming that the Collector of the 24-Perganahs is ex-officio Collector of Calcutta he has no jurisdiction to sell immoveable property in Calcutta. It is argued that while sale of land may be held in Bengal under [ACT] the power of the Colleotor under [ACT] is limited to the sale of goods and chattels. The answer however to this is that the property was not sold by the Collector in virtue of his title as Collector of Calcutta but under the [ACT] by virtue of his title as a certificate officer under that Act.
26. Lastly, it is said that there were material irregularities in the publication of the sale proclamation which caused substantial injury, viz.; the alleged inadequate price at which the property was sold,
27. As regards this I did not require the parties to go into evidence as it appeared clear to me that the suit in respect of this and all other objections to the execution proceedings was barred, both under [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT].
28. I have already held that [SECTION] is applicable to execution proceedings under the present Act: [PRECEDENT]. The same opinion has been also expressed in [PRECEDENT]. The correctness however of these decisions has been called in question, [PRECEDENT], and it becomes necessary to consider the, matter further with reference to the remarks there made.
29. The Act was amended by [ACT]. Decisions under the old Act are not of authority [PRECEDENT], [PRECEDENT]. C.W.N. 331. It is not clear what Act was applicable to the case [PRECEDENT], though it is to be observed that the Judge who decided that case did so on the authority of two decisions given under the Act prior to its amendment, in the most recent decision [PRECEDENT] the point was not decided. The matter must, therefore be determined by an examination of the Act itself.
30. [SECTION] of the Act prior to its amendment in 1897 provided that the procedure prescribed in [SECTION] (excepting [SECTION]) and [SECTION] of the Code should so far as it was, applicable be the procedure followed in execution proceedings? "to enforce such certificate and realise the amount recoverable thereunder." In other words those provisions only were applicable which related to the enforcement and execution of a decree for money. This would not in itself necessarily exclude [SECTION] but the operation of that section would control only matters of procedure in realising the amount of the certificate but not execution proceedings in their entirety.
31. However this may be, the language of the Act has bean altered and presumably an alteration of language is made to express an altered and not the same meaning. Now the lection runs: "and all the provisions of that Chapter except [SECTION] there of and [SECTION] of the said Cede shall apply so far as they are applicable."
32. There are in fact two separate provisions. The Legislature has said to the Certificate Officer you are to execute your certificate after the manner of execution of a money decree "and" (it then adds) all the provisions of that Chapter etc; (i.e. whether as regards realisation or otherwise) shall Apply "so far as they are applicable." What then are the meanings of these words? For the reasons stated I do not agree with the contention that a particular provision of the Code is not applicable if it does not relate to the actual realisation of a decree for money. For instance, [SECTION] takes the place of an attachment under [SECTION], But the section does not provide for the withdrawal of the attachment. The power of the Court to order it may be deemed ancillary to the power to enforce the certificate by attachment but application of a judgment-debtor for withdrawal on the ground that the decree has been set aside or satisfied cannot be said to be a matter relating to the enforcement of the certificate when the whole object of the application is that it should be withdrawn and not enforced. The provision however is one which is capable of being applied to proceedings taken for the execution of the certificate as a money decree. [SECTION] of the Code must therefore apply. The words "so far as they are applicable" therefor in my opinion mean this: The Code is to app"ly unless the nature of the particular provision itself makes it inapplicable or there is some provision in the [ACT] which makes it wholly or partially inapplicable. Thus obviously the provisions, of [SECTION] of the Code relating to mesne profits have no application. Nor though [SECTION] of the Code is declared applicable under [SECTION] has the penultimate paragraph of that section any application. Again [SECTION] of the [ACT] excludes the necessity of actual attachment under [SECTION] of the Code. It is necessary then to see whether the particular provision of the Code in question is capable of being applied to proceedings taken for the execution of the sertificate in the manner prescribed for the execution of money decrees. Then is there any thing which wholly excludes [SECTION] and [SECTION] of the Code. It has been said [SECTION] does not apply "because it contemplates a suit in which the decree which is being executed was passed." But this objection if well founded would exclude the whole of the provisions of [SECTION] of the Code. All the sections of that Chapter are based upon the common supposition that there has been a suit between contending parties in which a decree has been passed and which decree is being executed. No section would then apply notwithstanding [SECTION] of the Act. Take for instance [SECTION] of the Code. A legal representative of a deceased person against whom a certificate was made would be entitled to notice notwithstanding that the section speaks of him as the representative "of a party to the suit in which the decree was made."
33. The argument from the direct reference to [SECTION] and [SECTION] in [SECTION] of the Act is no doubt worthy of consideration but is by no means conclusive. It may have been inserted from greater caution and with a view to instruct the action of parties and certificate officers. Thus [SECTION] refer to [SECTION] of the Code which would without such direct reference have "so far as it was applicable" Lapplied.
34. [SECTION] also in my opinion applies. This was held not to be so under the Act of 1880: [PRECEDENT], [PRECEDENT]. It has however been said that the present Act by referring only to [SECTION] shows by implication that [SECTION] is not to apply. The result however of holding that [SECTION] does not apply is this. [SECTION] refers only to the application to set aside the sale. And if [SECTION] does not apply then though an application can be made, it cannot be dealt with nor can any order be passed on it. For the order on an application under [SECTION] is passed under [SECTION]. It is no answer to say that while the application is made under [SECTION] of the Code the power to set aside the sale is given by [SECTION] of the Act and therefore it is not necessary to invoke [SECTION] for confirmation takes place under that section and under [SECTION] a sale does not become absolute until it is confirmed.
35. [SECTION] thereto cannot be wholly excluded. It may no doubt be argued that the last paragraph does not apply. But I see no sufficient reason why an exception should be made as regards it. In the present case an application appears to have been made under [SECTION] and disallowed.
36. I therefore hold that both [SECTION] and [SECTION] bar the present suit.
37. The suit on this as on the former head of claim, in my opinion, also barred by [SECTION] of the [ACT]: [PRECEDENT].
38. The suit is, therefore, dismissed with costs on scale No. 2.