9911796707
TMI Blog1950 (9) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendants 1 to 3 were the recorded owners of two premises situated within the ambit of the Municipality of Kurseong. The pltf. Municipality brought two suits against the said recorded owners for recovery of arrear rates in respect of those two premises as had accrued due for the period 1937-1940. The suits were decreed on 4-4-1940. In execution of the said decrees the two holdings were attached before being put up to sale. Defts. 4 to 10 preferred claims against the order for attachment contended that they had previously obtained a decree against defts. 1 to 3 in Money Suit No. 21 of 1939 in execution of that decree the properties in suit had been purchased by them on 21-2-1940. Defendants 4 to 10 had not been impleaded by the Municip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any charge. The Municipality did not frame the suits as being suits to enforce a charge. 6. Section 167, Bengal Municipal Act XV [15] of 1932 runs as follows : The sum due on account of any rate under this Act from any person in respect of any holding shall, subject to the prior payment of the laud revenue if any due to the Govt. or of the rent (if any) due to a landlord under the Bengal Tenancy Act, 1885, thereupon, be a first charge upon the same holding. 7. A similar provision is to be found in the Calcutta Municipal Act (III [3] of 1923) by which the consolidated rates payable to the Calcutta, Corporation are made a first charge on the premises. The relevant portion of Section 205 of this. Act is in the following terms: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Calcutta 42 Cal. 625 : (A. I. R. ( 1915 Cal. 478), supra.) It has been found by the Ct. in the present case that the pltf. Municipality had not served any notice of arrear due on the defts. 4 to 10 when they addressed a letter (Ex. B, dated 13-12-1939) to the Chairman of the Municipality for requisitioning the service of a drummer for announcing to the public by beat of drums the sale proclamation of the attached property which included the two holdings in question. It is pointed out that when the said defts. had written another letter Ex. 5 M dated 2-4-1940 for the service of a Municipal drummer to announce the purchase by defts. 4 to 10 the said defts. were not intimated of the outstanding arrears. It is pointed out that when an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of a property within a municipal area where the property is subject to municipal tax which had been made a first charge on the property by statute, must be deemed to have been with knowledge of the possibility of some arrears being due to the municipality it, therefore, becomes his duty before acquiring the property whether it be a private or at a court sale, to make enquiries as to the amount of tax which is due or which may be due. If he fails to make this enquiry this failure amounts to a wilful abstention or gross negligence within the meaning of Section 3, T. P. Act a notice must be imputed to him. 14. The learned Dy. Comr. was, therefore, correct in holding that defts. 4 to 10 purchased the property subject to the charge of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 167, Bengal Municipal Act, becomes enforceable against the property only after a suit properly framed is brought for enforcement of that charge. The present suits are not of that description. No such suit had been brought by the pltf. municipality the latter is not entitled to enforce a charge against the property in the hands of defts. 4 to 10 in the present suit. 17. The result, therefore, is that the decrees as passed by the lower appellate Ct. are set aside as the pltf. is not entitled to get a declaration in the present suits that the decrees obtained in money Suits 19 16 of 1940 had created a charge on the holdings concerned. 18. The appeals are accordingly allowed the suits dismissed with costs in all the Cts. (One set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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