Ripoo Murdan Singh and Others Vs Ram Rekha Lal and Others

Pigot and Rampini, JJ.@mdashWe think the appeal must be dismissed. The only questions raised before us were those arising with respect to the fourth issue. Now, no notification such as is required u/s 5, Act XI of 1859, was issued in this case-- at least we understand that that is the allegation upon which the appeal is brought. No notification under that section having been made, the appellant contends that the sale was bad. We agree with the lower Court in thinking that that contention cannot prevail. It is argued that inasmuch as before the date of the sale, a notice u/s 10, Bengal Act VII of 1880, had been served, and a certificate issued by the Collector in pursuance of that section, that amounted to an attachment such as is contemplated by the third heading at the close of Section 5, Act XI of 1859. The ground on which that is contended is that it is enacted by Section 10, Bengal Act VII of 1880, that the service of such notice and certificate shall have the same effect, or, to use the words of the section," shall bind all Immovable property of such judgment-debtor situate within the jurisdiction of such Collector in the same manner and with like effect as if such Immovable property had been attached under the provisions of Section 274 of the Code of Civil Procedure." On the face of the words of the section, it is not an attachment, but it has the effect of an attachment, although an attachment had taken place for certain purposes. It has been held with regard to that section in Ram Narain Koer v. Mahabir Pershad Singh ILR 13 Cal. 208, that a proceeding u/s 10, Bengal Act VII of 1880, is not a judicial attachment, but the seventh heading at the end of Section 7 requires as an element of the description of the property which is intended to be sold without a notification that it should have been in the words of the section "under the provisions of any law for the time being in force been taken under the charge of or managed by the Court of Wards or the Revenue authorities." This is not the case here, nor is it contended that the property was managed by the Collector or the Court of Wards. Therefore, Section 5 does not apply. Then, it is contended that u/s 17 the property was exempt from sale completely for the same reason or for a similar reason, that the proceedings u/s 10, Bengal Act VII of 1880, caused the estate to be held under attachment by the Revenue authorities, Now, the case of Ram Narain Koer v. Mahabir Pershad Singh ILR 13 Cal. 208 negatives that view. The Court says: "It is very clear," speaking of this section, "that what that section points to is not an attachment in the sense in which the term is used in the Code of Civil Procedure, but an attachment such as is provided for in the Criminal Procedure Code--such an attachment as takes the property out of the possession of the ordinary owner, and places it in the possession of the Collector," and such, we think, for instance, as a proceeding u/s 99 of the Road Cess Act, under which the property is taken out of the possession of the owner so far as the perception of rents and profits is concerned, and placed in the hands of the Collector. Neither of these sections applying, the objections to the validity of the sale must fail, and the appeal must be dismissed.