The question raised in this appeal is, whether in execution of a certificate taken out under the Public Demands Recovery Act (VII of 1880), the interest of the Defendant No. 1 against whom the certificate was issued, as also that of the Defendant No. 2, his brother, against whom no certificate had been taken out, passed under the sale which took place, and at which sale the Plaintiff made his purchase.
The Subordinate Judge relying upon the case of Jeolal Singh v. Ganga Pershad has held that the whole holding in the occupation of both the Defendants Nos. 1 and 2 must be taken to have passed under the sale, inasmuch as the name of the former, the Defendant No. 1, stood recorded in the zemindar's rent-roll, and, therefore, he must be taken to represent the ownership of the entire holding. In the case of Jeolal Singh v. Ganga Pershad ??? the Subordinate Judge, it appears that in execution of a rent decree obtained by one of the fractional shareholders of an estate against the recorded tenant, his right, title and interest were sold; and the question was raised whether the interest of the other tenants passed under the sale. Sir Richard Garth, C.J, in holding that in the circumstances of the case, the entire holding must be taken to have passed to the purchaser, made the following observation:—“Where it is clear from the proceedings, that what is sold, is the interest of the judgment-debtor only, the sale must be confined to that interest, although the decree-holder might have sold the whole tenure, if he had taken proper steps to do so, or although the purchasers may have obtained possession of the whole tenure under the sale,” and lower down, the Chief Justice observed as follows:—“Now the Defendant No. 4 was not only the manager, but the sole registered owner of the tenure; and Adhikari Koer, in claiming against him the entirety of her share of the rent, took the ordinary and proper course of suing the tenant, who in the zemindar's sherista represented the entire tenure.” As we understand this judgment, it proceeded upon two grounds, first, that, in bringing the suit, the zemindar brought it against the recorded tenant in his representative capacity, and, secondly, that the recorded tenant represented the ownership of the whole tenure. This decision seems to have been, in substance, followed in a later case, Nitayi Behari v. Hargobind, which was relied upon by the learned vakil for the Respondent in the course of his argument. In that case, it appears that the zemindar had been in the habit of realizing the rent due from the holding in the occupation of the recorded tenant and other persons jointly interested with him, in previous years, from the recorded tenant; a suit was brought against him only for the rent of a subsequent year, and a decree for rent being obtained, the holding was sold as the right, title and interest of the recorded tenant; and it was held that the entire holding should be taken to have passed.
In the present case, the Subordinate Judge proceeded mainly upon the fact, so far as we can gather from his judgment, that the certificate was taken out against the person whose name stood upon the zemindar's rent-roll as tenant, and upon no other facts. But however that may be, one important thing that distinguishes this case from the cases of Ram Logan Ojha v. Bhawani Ojha(4), Nitayi Behari v. Hargobind as cited above, is that here there is no decree for rent; simply, a certificate was taken out against one of the tenure-holders, whose name happened to stand upon the rent-roll of the zemindar. As already mentioned, the certificate was issued under the provisions of Act VII of 1880, for the purpose of recovering the rent that was said to have been due. Sec. 8 of the said Act provides:—“Subject to the provisions of this Act, every certificate made under the provisions of sec. 7 shall, as regards the remedies for enforcing the same, and so far only, have the force and effect of a decree of a Civil Court” and so on. Sec. 9 says:—“When any arrear of any of the public demands specified in sec. 7 is unpaid by any person liable to pay such public demand to a public officer other than a Collector, or when any such demand as is specified in cl. 7 of the said section is unpaid by any person liable to pay the same to a manager appointed by the Court of Wards, such officer or such manager may give to the Collector of the district, in which such person resides, or in which such demand is payable, a notice in writing in form No. 3 in the second schedule annexed to this Act” and so on. And then we have it in sec. 10 that when such certificate has been filed in the office of a Collector, such Collector shall issue to the judgment-debtor a copy of such certificate and a notice in form No. 4 in the second schedule annexed to the Act and that “from and after the service of such notice, such certificate shall bind all immoveable property of such judgment-debtor situate within the jurisdiction of such Collector in the same manner and with like effect as if such immoveable property had been attached under the provisions of sec. 274, C.P.C” And referring to the notice in form No. 4, we find that it enjoins upon the judgment-debtor not to alienate his immoveable property or any part of it by sale, gift, or otherwise. This, we think, clearly indicates that the certificate is to be effectual only against the person against whom it is taken out, namely, the judgment-debtor mentioned in that document; and that proceedings are taken out against him not in his representative character, nor as representing the tenure, in respect of which the rent is sought to be recovered. The only other section that we need refer to is sec. 19 which runs as follows:—“Such certificate may be so enforced and executed by all or any of the ways or means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money, and all the practice and procedure provided by the said Code of Civil Procedure in respect of sales in execution of decrees” and so forth, Having regard to the provisions of the Certificate Act to which we have referred, we are of opinion that, when a certificate is filed in a Collector's office, and notice issued to the judgment-debtor, it can only be enforced against the property of the person whose name is entered in such certificate, as if it were a personal debt of his. And this was the view which seems to have been accepted by a Division Bench of this Court in the case of Shekaat Hossein v. Sasi Kar, where a certain property was sold under the Public Demands Recovery Act of 1880 in execution of a certificate taken out for the recovery of cess realizable under the Bengal Cess Act of 1880. The principle underlying that case, and the observations that were made by the learned Judges equally apply here. They observed there, among other matters, as follows:—“Sec. 10 of the Public Demands Recovery Act of 1880, under which the sale was held, declares that, on the filing of the certificate by the Collector in the manner specified, such certificate shall bind all immoveable property of the judgment-debtor situate within the jurisdiction of the said Collector in the same manner and with like effect as if such immoveable property had been attached under the provisions of sec. 274, C.P.C, and sec. 19 declares that “such certificate may be enforced and executed by all or any of the ways and means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money, so that any proceedings under the certificate procedure would be of the nature of proceedings in execution of decrees to recover personal debts.”
We think, having regard to the procedure of Act VII (B.C) of 1880 to which we have referred, that all that could pass, under the sale in the case was the interest of Defendant No. 1 and not of the Defendant No. 2 as well. We accordingly modify the decree of the Court below so as to declare that the Plaintiff is not entitled to a decree against Defendant No. 2, the result being that so much of the decree of the Court below as declares that the Plaintiff has purchased the right, title and interest of Defendant No. 1 is confirmed, but so far as it declares that the Plaintiff is entitled to a decree against Defendant No. 2 it is set aside.
The Appellant will be entitled to his costs.
S.C.S
Decree modified.