- (1.) THIS a defendants appeal arising out of a suit for declaration that the plaintiffs are the owners of the house in dispute and it was not liable to be sold in discharge of the Income-tax dues against the second defendant, Kesho Ueo, as a Karta of the Joint Hindu Family Firm Gopi Krishna Kashi Prasad. It was alleged that the plaintiffs were the owners of the house in dispute and they had nothing to do with the second defendant on whom the Income-tax Officer of Azamgarh had imposed Income-tax amounting to Rupees 16682/14/- for the realisation of which a recovery certificate was issued by the Income-tax Officer, Azamgarh to the Collector Ghazipur under S. 46(2) of the Income-tax Act and the Collector of Ghazipur in pursuance of the aforesaid certificate had wrongly attached the property of the plaintiffs. They had filed an objection for the release of their property before the Collector which was heard by the Sub-divisional Officer, Ghazipur who dismissed it summarily without taking any evidence on 17-09-1961. Thereupon the Collector of Ghazipur ordered the sale of the house of the plaintiffs. It was further alleged that a notice under S. 80 C.P.C. was sent by post to the first defendant, the Union of India, the present appellant.
(2.) THE suit was contested by the Union of India defendant No. 1 on the ground, inter alia, that the suit was not maintainable for want of a proper notice under S. 80 C.P.C. and that the house in dispute was the property of respondent No. 2, the defendant No. 2 in the case. The trial court found that the disputed property belonged to the plaintiffs. It however, dismissed the suit on the ground that no notice under S. 80 C.P.C. was given to the appellant. On appeal the lower appellate court affirmed the finding of the trial court that no notice under S. 80 C.P.C was given but further held that no such notice was necessary in the present case and, further, affirmed the finding of the trial court that the plaintiffs were the owners of the house in dispute. The Union of India has now preferred the present second appeal in this Court The finding that the house in dispute is the property of the plaintiffs which has been arrived at by the courts below is a finding of fact which cannot be assailed in second appeal. The further finding that notice under S. 80 of the C.P.C. was (not ?) sent by the plaintiffs is also a finding of fact which cannot be disturbed in second appeal. The question for consideration, however, is whether a notice under S 80 of the Code was at all necessary in the present case. The court below found that the suit in appeal in substance is a suit under O. 21 R. 63 of the Code and the objection preferred earlier by the plaintiffs before the sub-divisional officer was an objection under O. 21 R. 59 which had been dismissed, and the proceedings in the present suit are in continuation of the aforesaid proceedings and consequently no notice under S. 80 of the Code was necessary. The Court below relied on a decision of the Madras High Court in Mahomed Yusuf Sahib v. Province of Madras. AIR 1943 Mad 341 Reliance was placed in the aforesaid case on a decision of the Judicial Committee in Rajah of Ramnad v. Subramaniam Chettiar, ILR 52 Mad 465 : (AIR 1928 Mad 1201). It was observed as follows : "This suit has, however, been brought under O. 21, R. 63, to set aside the order of Court dismissing the plaintiffs claim petition and it must be deemed to be a continuation of those proceedings and therefore no fresh notice to the appellant is necessary. The argument that a suit may be a continuation of the prior proceedings when the claim is allowed but is not such continuation when the claim is dismissed, is based on no recognized principle and appears to be untenable. In fact in Phulkumari v. Ghanshyam Misra, ILR 35 Cal 202 for the purpose of court fee, a similar suit was deemed to be a continuation of the prior proceedings when the suit was brought after the claim petition had been dismissed."
(3.) RELIANCE was also placed on certain other decisions which are referred to in the aforesaid case of AIR 1943 Mad 341 (Supra). In this case, it was held that a notice under S. 80 of the Code was not necessary.;