BANGA CHANDRA NANDI Vs. TARA KINKAR PAL

JUDGEMENT

(1.) The short point raised by this appeal is as to whether the provisions of Section 317 of the Code of Civil Procedure 1882, which correspond with those of Section 63 of the Code of 1908, and bar a suit against a certified purchaser buying benami at a sale in execution of a decree, apply to the case of a purchaser at a sale in enforcement and execution of a certificate issued under the Public Demands Recovery Act, 1895, (Bengal Act I of 1895), by virtue of Sub- section (2) of Section 19 of the said Act.

(2.) The application to such certificates of Section 241 of the old Code, in Chapter XIX of which both that section and Section 317 find place, has been the subject of a number of conflicting decisions. Thus, in Umedali Bhuya v. Rajlakshmi Debya 1 C.L.J. 538 : 10 C.W.N. 130 : 33 C. 84, Brett and Woodroffe, JJ., held that Section 244 was applicable; whereas in Raghubans Sahai v. Ful Kumari 1 C.L.J. 542 : 32 C. 1130, Harington and Mookerjee, JJ., ruled that it was inapplicable. But as regards Section 317 there is, so far as I know, only one reported case, namely, that of Ambica Prosad v. Gopal Baksh Das 1 C.L.J. 550, in which Banerjee and Rampini, JJ., expressed an opinion against the applicability of the provision. That opinion, however, was really an obiter dictum, the case having been decided on other grounds; and the learned Judges were then construing Sub-section (2) of Section 21 of the Public Demands Recovery Act of 1895, as it was enacted in the first instance when it ran as follows: The procedure prescribed in Chapter XIX (with the exception of Section 310A) shall, so far as it is applicable, be the procedure followed in execution proceedings to enforce such certificate and realise the amount recoverable thereunder.

(3.) Section 19, Sub-section (2), which has, by Section 12 of the Bengal Public Demands Recovery (Amendment) Act 1897, (Bengal Act I of 1897), been made to take the place of the earlier provision, is, however, very differently expressed in these terms: Such certificate may be enforced and executed in the manner provided by Chapter XIX of the Code of Civil Procedure for the enforcement and execution of decrees for money; and all the provisions of that Chapter, except Section 310A thereof, shall apply so far as they are applicable.