MAHENDRA BHUSHAN SHARMA, J. - (1.) ONE Kalu Ram stood surety for Madan Lal an Excise Contractor who was given Country Liquor contract on guarantee system in the year 1975 for a shop in Borunda. In relation to the dues against said Madan Lal with regard to the aforesaid Liquor contract the House of Kaluram the Surety was at attached under Ex. 1 dated August, 30, 1976. The petitioner who is the widow of said Kalu Ram has filed the writ petition in this Court for quashing the attachment of her house by the respondents and from restraining the respondents from recovering any amount from the petitioner's properties on the basis of certificate issued against Madan Lal the Liquor contractor,
(2.) THE facts relevant for appreciating the controversy in this writ petition are these:
(3.) LICENCE for country Liquor shop situated in Borunda, Tehsil Bilara for the year 1975 -76 on guarantee system was given to one Madan Lal and Kalu Ham since deceased husband of the petitioner Smt. Gulab stood a surety for the said Madan Lal for the amount of Rs. 15,010/ - and executed a surety bond in favour of the State. There was a shortfall in the guarantee amount to the extent of Rs. 4008. 41 ps. for the months from April, 1975 to August, 23, 1975 and besides that as a result of re -auction of the Country Liquor shop of Borunda there was a loss of Rs. 5443/ - The liability of Madan Lal, the licensee, was determined to the extent of Rs. 58051.41 ps. The District Excise officer, Jodhpur determined the aforesaid liability under his order dated August, 20, 1975 (Ex. 2) and in the aforesaid order also held that in case the recovery in whole or in part is not possible from Madan Lal then the amount should be recovered from the property of Kalu Ram the surety. The District Excise Officer on 8th February, 1980 issued a warrant of sale of property belonging to Kalu Ram authorising the Assistant Excise Officer, Jodhpur to sell the property belonging to Kalu Ram and attached on 20.9.79 for the dues amounting to Rs. 57239.97 ps. Sale proclamation was also issued. The petitioner who is the widow of Kalu Ram the surety has challenged the attachment of her property as well as the recovery proceedings by sale of it on the following grounds: (i) That the certificate of recovery is against Madan Lal s/o Sheo Karan Tak of Borunda and on the basis of this certificate, recovery proceedings could not be started by the District Excise Officer against Kalu Ram, husband of the petitioner, without coming to the conclusion on the basis of legal proceedings under Section 257 of the Land Revenue Act 1956 that Kalu Ram the surety is liable to pay the amount as a, surety. (ii) The Collector did not issue any notice to Kalu Ram during his life time and no notice was issued to the petitioner after the death of Kalu Ram. Thus without a notice they finding, even if any, of the Collector, that Kalu Ram is liable to pay the amount of surety is without jurisdiction. (iii) That the recovery proceedings are being taken in the name of Kalu Ram deceased husband of, the petitioner and as such, being against a dead person, are nullity in the eye of law. (iv) That the recovery proceedings are not only arbitrary but are also malafide in as much as thought Kalu Ram under the surety bond had made himself liable to the extent of Rs. 15010/ -, but the attachment and sale of the property belonging to Kalu Ram has been affected for the recovery of Rs. 57236.97 ps. the entire amount payable by defaulter Madan Lal. (v) That under Section 40 of the Rajasthan Excise Act 1950 (for short herein after referred to as 'the Act') the amounts payable by any person or his surety are recoverable as arrears of the Land Revenue and hence under Section 257 of the Rajasthan Land Revenue Act 1956 (for short as 'the Land Reveuue Act') the recovering authority is bound to hold a proper enquiry as to whether a person has become liable as a surety before proceedings for recovery can be initiated against him. ;