- (1.) THE only question raised in this appeal is whether in the absence of a prior notice to the collector under Section 80, Code of Civil Procedure, the suit in question could proceed.
(2.) SMT. Sushila Rani defendant-respondent No. 2 obtained an order for maintenance under: section 488 of the Code of Criminal procedure against her husband Bipan Chander Pal. In enforcement of this order the Criminal Court issued a warrant under Section 386 (1) (b) of the code of Criminal Procedure to the Collector, Ludhiana, authorising him to realise the amount by execution according to civil process against the movable and immovable property of the husband. The Collector accordingly took out execution and got attached the shop in dispute situate in saban Bazar, Ludhiana. Smt. Ram Sundri plaintiff-appellant thereupon filed objections under order XXI, Rule 58 of the Code of Civil Procedure but they were disallowed. Thereupon she instituted the Pre-sent suit, under Order XXI, Rule 63 of the Code of Civil Procedure, seeking a declaration that she was the owner of the shop in question and the same was not liable to be attached or sold in satisfaction of Smt. Sushila Rani's claim for maintenance against Bipan chander Pal defendant-respondent No. 3 before me. The Collector on whose application the property in dispute was attached, was impleaded as a party along with Smt. Sushila Rani and her husband, Bipan Chander Pal. The contesting defendants raised an objection that the suit was not competent as no prior notice under Section 80 had been served upon the Collector. The only issue tried by the Court is "whether notice under Section 80, Civil Procedure Code, was required to be served upon the Collector?" The trial court gave its decision against the plaintiff-appellant.
(3.) ON appeal, in the Court of the learned District Judge, it was not disputed that no suit; could be instituted against the Collector in respect of anything, done by him in his official capacity until a notice had been given to him under Section 80 of the Code of Civil Procedure and two months after such notice had expired. It was also admitted that no notice had been served in the present case. It was, however, contended that the suit in question was a mere continuation of the objection proceedings which had been filed by the appellant in the executing Court under Order xxi, Rule 58, and consequently no notice under Section 80 was necessary. Reliance in support of this contention in the Court of first appeal was placed on Mahomed yusuf v. Province of Madras, AIR 1943 Mad. 341 and Hira-luxmi Pandit v. Income-tax Officer, air 1955 Pat. 404. The learned District Judge, however, preferred the view taken in sangakhedakalan Co-operative Bank, Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nag. 232 which purported to follow Bhagchand Dagdusa v. Secy. of State AIR 1927 P. C. 176. The learned District Judge also observed that AIR 1943 Mad. 341 was based upon an earlier decision of the Madras High Court in Raja of Ramnad v. Subramaniam Chettiar, ILR 52 Mad 465: (AIR 1928 Mad 1201), the facts of which were distinguished by the learned District Judge on the ground that in ILR 52 Mad 465: (AIR 1928 Mad 1201), a notice was considered to have been actually given at an earlier stage; it was also distinguished on the ground that it had been decided prior to the decision of the Privy Council in AIR 1927 P. C. 176. Shingara Singh v. Callaghan, air 1946 Lah. 247 was also referred to as upholding this view.;