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TMI Blog1948 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... with the endorsement Refused, bearing the date the 5th January, 1943. On the 8th January, 1943, that is to say, the very date fixed for the sale, the Appellant made an application before the Diamond Harbour Special Debt Settlement Board for settlement of this single debt and had a notice under sec. 34 of the Bengal Agricultural Debtors Act issued immediately. The notice was taken out by an agent of the Appellant herself, but when he reached the executing Court, the sale had already taken place. The holding had been sold for ₹ 424-10-3 Pies and purchased by the Respondent who was the only bidder. On receipt of the notice from the Debt Settlement Board, the executing Court stayed further proceedings with the result that the sale remained unconfirmed. The application under the Bengal Agricultural Debtors Act was, after some time, transferred to the Board at Netra and thence again to the Sarisha Debt Settlement Board and by that Board it was dismissed on the 11th June, 1944, for default. The dismissal was communicated by the Sarisha Board to the Executing Court by a notice dated the 2nd July, 1944, and thereupon the sale was confirmed on the 28th of July. On the 27th August, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On appeal, the learned Subordinate Judge affirmed the finding of the trial Court as regards limitation on the same grounds. On the merits, he held that the sale proclamation had been duly served and the service of the concise statement, such as it was, was good service. No question of any injury caused by the sale, therefore, arose. But the learned Judge pointed out that no evidence had been adduced as to the value of the land at the time of the sale and he held that assuming that the apparently low price at which the Respondent had purchased the property was really inadequate, still the inadequacy had not been caused by any fraud or irregularity. The learned judge recorded a further finding that there were no circumstances which might be said to have affected the jurisdiction of the Court so as to make the sale a nullity. It had not been proved that the application before the Debt Settlement Board had been filed before the sale was held, though both took place on the same day, and consequently the position was that neither at the time of the sale, nor at the date of the confirmation order was any application pending before the Debt Settlement Board. In the result, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltural Debtors Act is available to her. The Courts below excluded that section by relying on the decision in Radha Benodini Debi v. Gagan Chandra Bhattacharjee 49 C.W.N 906 (1945). That decision, however, is not concerned with sec. 52 at all and all that was held therein is that a proceeding under Or. 21, r. 90, C.P.C., is not an execution proceeding within the meaning of the Explanation to sec. 34 of the Act. Sec. 52, to quote only the relevant portion, provides that in computing the period of limitation for any application regarding a debt which has been the subject of any proceedings under the Act, the time during which such, proceedings continued and the time curing which the applicant was debarred from making the application, shall be excluded. It was held in the case of Subodh Chandra Maity v. Bidhu Bhusan Das 47 C.W.N. 543 (1943) that the section contemplated two distinct periods, one during which proceedings under the Act were pending and one during which recourse to the other tribunal was barred and that the party concerned was entitled to exclude both or to exclude a particular period if it satisfied either test. Again, it was held in the case of Dulichand Bothra v. Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al injury. The only irregularity urged before me was that the concise statement had not been served. Reliance was placed on the decision in Gobinda Chandra Shaha v. Dwarka Nath Patita 19 C.W.N. 489 (1914) and it was contended that since the registered letter had come back, the presumption that it had been delivered in due course to the addressee was rebutted and since the postman had not been examined to prove the endorsement of refusal, there was no evidence that the letter had ever been tendered to the Appellant. The argument is a plausible one, but having regard to the pre-ponderance of authority, I am unable to accept it as correct. The case relied on does not itself go as far as the Appellant contended, for, although there are undoubtedly observations to the effect that the endorsement was not admissible in evidence of the refusal in the absence of examination of the postman or proof that the circumstances contemplated by sec. 32 (2) of the Evidence Act existed, still the ultimate decision is that the endorsement could not prove the date on which the Utter had been tendered and refused. It was essential in that case for the Plaintiffs to prove that the notice to quit had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Pearson, J., where it was held that if a registered letter was refused, that in itself, until explained, was prima facie good enough evidence that the addressee had had an opportunity to accept it. In none of these cases does the postman seem to have been examined. 11. The position, as I see it, is this. The matter is governed by sec. 28 of the Bengal General Clauses Act [sec. 168 (5) (c) being an enactment of the Bengal Legislature], sec. 16, Illustration (b) of the Evidence Act and sec. 114 of the same Act, Illustration (f). As I tried to explain it elsewhere in another capacity, when the posting of a registered letter is proved, the statutory presumption under sec. 28 of the Bengal General Clauses Act, carries the proof up to due service. Although there may be no evidence of tender and refusal, that gap may be filled, when the endorsement is there, by invoking Illustration (f) to sec. 114 of the Evidence Act, that is to say, by presuming that the common course of business was followed and the postman did tender the letter to the addressee and did write the endorsement of on refusal by the addressee to accept delivery. If the refusal does not come within the ambit of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale. Since the Appellant gave no proper evidence, her allegation remains unproved. 14. Lastly, even assuming that the concise statement was not served, the Appellant could not succeed unless she proved that the irregularity had caused her substantial injury. It could have caused her injury only if it had the effect of keeping her unaware of the coming sale and thus prevented her from averting the sale by paying off the decretal dues. But it is perfectly clear that whether the concise statement was served or not, she was fully aware of the fact that the sale was going to be held on the 8th January, 1943. The notice under sec. 34 of the Bengal Agricultural Debtors Act gives the fullest particulars of the execution case, including its number, the Court in which it was pending and the date fixed for the sale. These details were obviously supplied by the Appellant herself and, indeed, even in her application under sec. 174 (5) she states that she made her application before the Debt Settlement Board on coming to know of the impending execution sale. In the circumstances, it is idle for her to contend that non-service of the concise statement caused her any injury, substantial or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. The sale was not affected even by sec. 34, since the notice under that section reached the Executing Court only after the sale had been held. The sale cannot, therefore, be challenged under either section. As regards the confirmation order, the position under sec. 34 and sec. 35 is, on the argument of the Appellant, practically the same. If the restoration of her application by the Board had the effect of reviving the proceeding to the extent of making it pending throughout since its institution, the order would be bad as contravening sec. 35, whether there was any notice under sec. 34 or not [Jnanendra Nath Basu v. Sm. Profulla Bala Debi 49 C.W.N. 578 (1945)]. It would also be bad as contravening the notice under sec. 34, since the dismissal of the application being wiped off, the notice would be deemed to have remained operative. There is, however, some distinction between a revival of the proceeding itself and the revival of the notice, to which reference will be made later. But, basically, the argument under sec. 34 and that under sec. 35 both depend upon a revival of the proceeding with retrospective effect. 19. In substance, the argument of the learned Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attachment order, it was held that they were, inasmuch as the moment the review application was allowed, the suit was revived, together with the attachment order. That proposition may at once be conceded, but it does not touch the present case. If the purchase had taken place between the dismissal of the suit and the granting of the application for review, and it had yet been held that the purchase was hit by the attachment order, the facts would be parallel to those of the present case and the decision would be applicable. As it was, the purchase was made not merely after the granting of the application for review, but even after the suit had been finally decreed and by then, it may be conceded, the attachment order had come back into force. It is true that the point of time at which the revival was held to have taken place was an earlier point it which the review was granted, but even that does not reach the interval during which the suit stood dismissed, which is the period relevant in the present case. 24. I cannot find any relevancy of any kind in the Bombay decision cited by the Respondent. There, a suit, which had been decreed by the trial Court, was at first dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Court, that if a suit, on being dismissed for default, was restored, it remained as it was on the day when it was dismissed and all proceedings taken up to that date must be deemed to be in force when the dismissal was set aside and all interlocutory orders would be revived. Even this decision is of no help. It may be that when and after the dismissal is set aside, all interlocutory orders made before the dismissal shall be deemed to be in force and to have revived, but the decision does not say that the revival would take effect from any earlier date. 26. In my opinion, assuming that on the restoration of a proceeding, dismissed for default, all orders made before the dismissal, are revived, there is a distinction between revival as at the date of the restoration and revival with retrospective effect. It does not seem to be possible that the revival can have the effect of making interlocutory orders existent during the interval when the proceeding itself was in fact non-existent. It may be that after the proceeding is restored, it is not necessary to pass the interlocutory orders, made before the dismissal, over again, but they will revive automatically and be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application pending before the Board. If, therefore, the Civil Court is once informed that the application has been dismissed, as it was in the present case, it is impossible to see how proceedings resumed by it could be affected on a restoration of the application, unless a notice was again served or at least the Court was informed that the application had been restored. For it is not the application itself, but the Court's knowledge of its pendency, which constitutes the bar. In the present case, no notice or information of the restoration could have been given before the order of confirmation, because the restoration took place after the order. The fiction of revival cannot possibly suffice, for the essential requisite being the Court's knowledge, such knowledge could not be created by a fiction, particularly when the thing of which knowledge was necessary was non-existent at the time. 28. I am accordingly of opinion that neither sec. 34, nor sec. 35 affects the validity of the order confirming the sale which was made on the 27th July, 1944, after the application before the Board had been dismissed on the 11th June and before it was restored on the 8th October. 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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