1. This is an appeal on behalf of the plaintiff in a suitfor declaration that; a certificate, purported to have been made against her onbehalf of the Secretary of State for India in Council under the Public DemandsRecovery Act, 1895, is illegal, invalid and made wholly without jurisdiction.The Subordinate Judge has dismissed the suit without any investigation, intothe merits, on the ground that the suit is barred under the provisions ofsection 244 of the Civil Procedure Code of 1882, and also under section 15 ofthe Public Demands Recovery Act, 1895. As the facts have not been investigated,we must assume the allegations of the plaintiff, as made in her plaint, to becorrect and determine thereon whether the suit is barred, as held by theSubordinate Judge. Now, the case for the plaintiff is that, on the 16th April1905, she purchased the property described in the schedule to the plaint, at asale held by a Receiver appointed by this Court on its original side. Theproperty in question belonged to a family of Mukherjees, some of whom hadinstituted a suit for partition on the original side of this Court in 1899.During the pendency of this suit, a Receiver was appointed, and under thedirection of the Court, a portion of the estate was sold for liquidation of thedebts of the estate. The sale at which the plaintiff purchased has been dulyapproved and confirmed by the Court. Several years before the purchase of theplaintiff, steps appear to have been taken in the shape of the Rajapur DrainageScheme, under the Bengal Drainage Act, 1880, for the improvement of variousproperties, which, it is alleged, included the property subsequently purchasedby the plaintiff. For the payment of the expenses of the works executed underthe Drainage Act, three of the Mukherjees gave the Secretary of State for Indiain Council an instalment bond on the 4th February 1898. The Mukherjees madedefault in payment of the sums due under the instalment bond, and thereupon acertificate was prepared by the Collector against them, numbered as CertificateNo. 507 of 1900-01. It appears that, subsequently, when the estate of theMukherjees passed into the possession of the Receiver, his name was substitutedin the certificate in the course of the year 1903-4 and later on, after thepurchase by the plaintiff, her name was substituted on the record on the 9th.July 1906 in place of the Mukherjees and the Receiver. The plaintiff objectedbefore the Revenue authorities that this procedure was wholly unauthorized; andthat the Certificate Officers had no jurisdiction to introduce her name into acertificate against the Mukherjees for recovery of money due from them underthe instalment-bond. This objection was overruled on the 17th January 1907. Onappeal to the Commissioner, the order was confirmed on the 12th April following;and an application, to the Board of Revenue for revision of this order, wasrejected on the 5th August 1907. On the 11th November 1907 the plaintiffcommenced the present action for declaration that the proceedings of theCertificate Officer were illegal, invalid and, without jurisdiction. She alsoasked for a declaration that neither she herself nor the property purchased byher was liable for the sum due from the Mukherjees under the instalment bond.On behalf of the Secretary of State for India in Council the claim was resistedon various grounds, amongst which it is sufficient to mention two, namely,first, that the Certificate Officer had authority to substitute successivelythe names of the Receiver and of the plaintiff in place of the Mukherjees inthe certificate; and, secondly, that the purchase of the plaintiff was subjectto the liability to pay the sums due from the proprietors under the BengalDrainage Act, Issues were, therefore, framed on the 21st January 1908. Afterthe suit had remained pending for many months, at the instance of the defendantSecretary of State, two new issues were framed on the 5th June 1909, namely,first, that section 244 of the Civil Procedure Code of 1882 was a bar to themaintainability of the suit, and, secondly, that the suit was barred by thegeneral and special rules of limitation. The Subordinate Judge, as we havealready stated, has taken no evidence in the matter but has given effect to thetwo objections in bar just mentioned. The plaintiff has appealed to this Court,and on her behalf the decision of the Subordinate Judge has been challenged onthree grounds, namely, first, that the Subordinate Judge ought not to havepractically allowed the written statement to be amended at a very late stage ofthe suit, and thus enabled the defendant to raise objections in bar not takenin the original written statement; secondly that the suit is not barred undersection 244 of the Civil Procedure Code; and thirdly that section 15 of thePublic Demands Recovery Act of 1895 is no bar to the maintenance of the suit.

2. In so far as the first of these objections is concerned,there is, in our opinion, considerable force in it. The principle iswell-settled that, under rule 17 of Order VI of the Code of 1908, amendments ofpleadings should be allowed when they may be necessary for the purpose ofdetermining the real questions in controversy between the parties [see Collettev. Goode 7 Ch. D. 842; 47 L.J. Oh. 370; 38 L.T. 504]; in other words, leave toamend ought to be refused where the amendment is merely technical or isimmaterial. This rule has been carried so far that, in James v. Smith (1891) 1Ch. 384, 63 L.T. 524; 39 W.R. 396, when a defendant had pleaded section 4 ofthe Statute of Frauds, he was not allowed to amend the pleading with a view toavail himself of section 7. The defendant was bound to plead the Statute, andwas not obliged to plead the particular section, but as he had relied on aparticular section of the Statute, it was ruled that he could not renounce theposition taken up and avail himself of some other section [see also Edevain v.Cohen (1889) 43 Ch D. 187; 62 L.T. 17; 38 W.R. 177 and Dillon v. Balfour (1887)20 L.R. Ir. 600.] In so far as the objection that section 244 of the CivilProcedure Code was a bar was concerned, it was of a highly technical character,and the view might well be maintained that an amendment should not have beenallowed for this purpose. In so far, however, as the plea of special limitationwas concerned, the matter apparently stood on a somewhat different footing. Ifthe rule of limitation relied upon was one prescribed by the Indian LimitationAct, it could not have been waived, and it could have been obligatory upon theCourt to dismiss the suit even if the defendant had not relied upon the plea oflimitation. It may be a matter for controversy whether that doctrine ought tobe extended to the special rule of limitation embodied in section 15 of thePublic Demands Recovery Act, 1895. It is worthy of note, that, in other systemsof jurisprudence, the view has been maintained, that if a defendant to whomdefence of the Statute is open, omits through inadvertence to plead it, theCourt may allow an amendment of the pleadings and thus enable the defendant toavail himself of the defence of the Statute, if the Court is of opinion thatthe plea of the Statute is, in the circumstances, a meritorious one [Archboldv. Earl of Howth (1864) 15 Ir. C.L.R. 420; Bone v. Smith (1867) I.R. 2 C.L.244.] Under these circumstances, the action taken by the Subordinate Judge infavour of the defendant, to enable him at a very later stage of the suit, toamend the written statement and thus to raise objections in bar to themaintainability of the suit, is at least open to criticism. It is not necessary,however, to deal with this aspect of the matter further, because we are clearlyof opinion that the view taken by the Subordinate Judge as to the soundness ofthe two objections in bar is wholly unsustainable.

3. In so far as the second ground urged on behalf of theappellant is concerned, it has been argued that no question can possibly ariseas to any application of section 244 of the Civil Procedure Code to the presentsuit. The plaintiff seeks for a declaration that the certificate has been madeby the Revenue Authorities, as against her, entirely without jurisdiction. Thisis obviously not a question within the scope of section 244. It has beenrepeatedly pointed out, that no Court of execution can entertain an objectionthat the decree under execution is inoperative in law. [Benode Lal v. BrojendraKumar 29 C. 810; Hassain Ali v. Gauzi Ali 31 C. 179; Rash Behari v. ThakurJoynanda 4 C.L.J. 475; Debendra Nath v. Prosanna Kumar 5 C.L.J. 328; Sundarappav. Sreeramulu 17 M.L.J. 288; 2 M.L.T. 360; 30 M. 402; Sudindra v. Budan 9 M.80; and Arunachallam v. Murugappa 12 M. 503. The question which the plaintiffseeks to raise here, is that the certificate, sought to be made against her bythe Revenue Authorities, has been made wholly without jurisdiction. A questionof this description cannot possibly be tried by an execution Court, and theSubordinate Judge appears to have overlooked the elementary principle that noquestion touching the validity of a decree, can be raised in the course ofproceedings in execution of that decree. But even if the point was one whichmight be deemed included within the scope of section 244, the question whethersection 244 is a bar to a suit of the present description, is by no means freefrom difficulty. The Subordinate Judge relies upon the cases of BerhamdeoNarayan v. Bibi Rasul Bandi 32 C. 691; 1 C.L.J. 360; Umed Ali v. Raj Lakshmi: 33 C. 84; 1 C.L.J. 538; 10 C.W.N. 130 and Hari Charan v.Chandra Kumar : 34 C. 787; 11 C.W.N. 745 as authorities forthe proposition that section 244 of the Civil Procedure Code applies toexecution proceedings under the Public Demands Recovery Act. But he hasoverlooked that the contrary "view has been maintained in the case ofRaghubans Sahai v. Phul Kumari 1 C.L.J. 542; 32 C. 1130. In this divergence ofjudicial opinion it was not right for the Subordinate Judge to dismiss the suitsummarily on the ground that it was not maintainable by reason of section 244;in fact, the Subordinate Judge appears to us to have very imperfectlyappreciated the difficulty of the questions which he assumed arose for hisconsideration. The second ground upon which the judgment of the SubordinateJudge is assailed, must consequently prevail.

4. In support of the third ground taken on behalf of theappellant, it has been urged that section 15 of the Public Demands Recovery Acthas no application to the circumstances of the present case. That section, readwith section 17, sub-section (1), shows that the suit contemplated is a suit ina Civil Court for cancellation of a certificate duly made. Here the allegationof the plain-tiff-appellant is that the certificate has not been duly made; andthat in fact, the procedure adopted by the Revenue Authorities has beenstrictly without jurisdiction. The plaintiff contends that a certificate wasoriginally made against the Mukherjees for recovery of a sum due under theinstalment-bond executed by them; that when their estate vested in theReceiver, the name of the latter was improperly substituted in the place ofMukherjees, and finally, that after her own purchase, her name was, in a whollyunauthorised manner, substituted in the place of the Mukherjee and theReceiver. The plaintiff argues upon these allegations that the procedureadopted was never contemplated by the framers of the Public Demands RecoveryAct; and that, even if it is assumed that a certificate had the force of adecree for certain specified purposes, there is no provision of the law underwhich her name could be substituted in the place of the Mukherjees as thejudgment-debtor. This aspect of the case has not been at all appreciated by theSubordinate Judge. It is difficult to perceive how the provisions of section234 or 248 of the Civil Procedure Code under colour of which the RevenueAuthorities appear to have acted, could have any possible application to thecircumstances of the case before us. The original judgment-debtors are notdead: the Receiver also is alive. Upon what conceivable principle, it may wellbe asked, can the present plaintiff be substituted in the certificate as thelegal representative of the original judgment-debtors The principle whichunderlies the decisions of this Court in the cases of Poorihitlal v. Sabeerun 7W.R. 368 and Dhuronidhur Sen v. Agra Bank 5 C. 86, undoubtedly militatesagainst the view that the plaintiff could be treated as the legalrepresentative of the Mukherjees against whom the original certificate had beenmade. It is conceivable that the plaintiffs might be rendered liable for sumsdue under the Bengal Drainage Act, on some principle which has not beenexplained to us. But it seems to be fairly clear that the attempt which appearsto have been made by the Revenue Authorities to fasten on the plaintiff theliability imposed on the Mukherjees by the instalment-bond was never sanctionedby the Legislature. In this connection, it is well to bear in mind that, asrepeatedly ruled by this Court and by the Judicial Committee, for the validityof a certificate under the Public Demands Recovery Act, the essentialpre-requisite is a strict compliance with the provisions of the Statute [Gujrajv. Secretary of State 17 C. 414; Mahomed Abdul Hai v. Gujraj 20 C. 826; 20 I.A.70; Baij Nath v. Ramgat 5 C.L.J. 687; Baij Nath v. Ramgat 23 C. 775; 23 I.A.45]. In any event, the suit as framed seeks for a declaration that thecertificate has not been duly made against the plaintiff. To a suit of thisdescription, the special period of limitation provided by section 15 of thePublic Demands Recovery Act has no imaginable application. In support of thisview, the Subordinate Judge, we observe, placed reliance upon the case of.Gopal Das v. Hardeo Das 5 C.W.N. 86. But that case was of an entirely differentdescription and was for the reversal of a sale held in execution of acertificate. A careful perusal of the judgment would have shown to the learnedSubordinate Judge that the case had no direct bearing upon the question raisedbefore him. The third ground upon which the decision of the Subordinate Judge isassailed must consequently prevail.

5. The result therefore, is that this appeal is allowed andthe decree of the Subordinate Judge set aside; the case is remanded to him fortrial on the merits upon such evidence as may be adduced by the parties. The appellantis entitled to her costs in this Court. The costs in the Court below will abidethe ultimate result. Under section 13 of the Court Fees Act, we direct that theCourt fees paid by the plaintiff upon the memorandum of appeal presented by herto this Court, be returned to her.

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Nagendra Bala Chaudhranivs. The Secretary of State for India(20.04.1911 - CALHC)