Rakhal Chandra Rai Chowdhuri and Others vs The Secretary of State for India in Council

Prinsep and Trevelyan, JJ.—This is a suit brought to recover money realised under a certificate under Bengal Act VII of 1880.

It has been dismissed by both Courts as barred by limitation because it has not been instituted within one year of the date of the service of notice required u/s 10 of that Act. The lower Appellate Court has held that service by means of posting the notice on the dwelling-house of the plaintiff No. 1 is sufficient, and that this is proved by the evidence of the peon examined.

Bengal Act VII of 1880 makes no special provision as to the manner of service. We cannot, however, suppose that the Legislature could have intended that service of a less effective character should be sufficient than it has expressly prescribed for similar processes under the Code of Civil Procedure. We are of opinion that, before a service of the description found in this case can be accepted, it must be shown that some attempt has been made to effect personal service, and that such personal service for some reasons stated could not be made. In this case we cannot find any evidence to this effect. It would seem rather that the person deputed to serve the notice was satisfied with fixing it to the door of the premises occupied by one of the judgment-debtors. Having regard to the terms of the CPC with respect to service of similar processes, and to the stringent character of proceedings under the Certificate Act, we are unable to accept the finding of the lower Court that proper service has been made, and therefore the suit should not have been dismissed as barred by Clause (6) of Section 6 of the said Bengal Act VII of 1880.

We would further observe that the lower Appellate Court has placed on the appellant-plaintiff the onus of proving that no service was effected. It was sufficient for him to deny any such service so as to put upon defendant the burden of proving that proper service has been made at a time so as to bar the suit.

The case must be returned to the lower Appellate Court to be tried on the other points raised by the plaintiffs, who will get the costs of this appeal. The other costs of the suit will abide the result.