A distraint is a "proceeding under the act" and section 59 of the Madras Revenue Recovery Act, 1864 applies.

( 1 ) THE main question of law in this Second Appeal turns on the true construction of section 59 of the Madras Revenue Recovery Act, 1864 (Act II of 1864) which provides :"nothing contained in this Act shall be held to prevent parties defining themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the civil Courts for redress : provided that civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose. "

( 2 ) IN the present case the lower appellate Court has found that the appellant (a village munsif) had distrained a buffalo belonging to the respondent for arrears of land revenue, without complying with the formalities prescribed by section 8 of the Act and that the appellant had seized the buffalo from a place outside his jurisdiction. The lower appellate Court has also found that in effecting the seizure, the appellant had acted maliciously. In that view the lower appellate Court has held that the period of limitation prescribed by section 59 is not applicabfe to the case.

( 3 ) SO, the question in this case is whether the distraint is a "proceeding under the act ". If it is, section 59 applies ; if it is not, the section does not apply. On this question there is a divergence of judicial opinion in the Madras High court. In an early case Venkata v. Chengadu and others, (1888) I. L. R. 112 Mad. 168, a Full Bench of four judges repelled the contention that section 59 of Act II of 1864 was not applicable to cases of fraud, and it can only apply when the procedure prescribed by the act has been duly followed. Muthuswami Ayyar, J. , with whom the other Judges agreed, said at page 175:"the true import of the expression aggrieved by any proceedings under the Act is not that the proceedings should be in accordance with the Act and therefore perfectly legal, but that the proceedings, though defective and irregular and therefore not in strict conformity to the provisions of the Act, should be taken professedly under if. If the suggestion of the appellant s counsel were to prevail, there would be no grievance at all to be redressed by a civil Court. "

( 4 ) THE learned Judge, however, added at page 176 :"it may be an open question whether the proceedings contemplated in section 59 are those which are vitiated by mere errors of procedure or include those taken without jurisdiction and, therefore, not within the purview of this Act. For instance, there may be a sale when there are no arrears of revenue, or the land sold may not be included in the patta or holding liable to be sold for the purpose of liquidating them. "

( 5 ) I would have unhesitatingly followed this ruling, firstly because since it has not been overruled by a fuller Bench, it is binding on me ; and secondly because- though this is of little consequence-in my humble opinion it represents the correct view. It may also be mentioned that in the present case the respondent was admittedly in arrear of land revenue and the authority of the appellant to effect the distraint was not disputed. It is also worthy of note that the respondent had served a notice under section 80, Civil Procedure Code, on the appellant on the footing that the act complained of was one purporting to have been done by the appellant in his official capacity.

( 6 ) BUT, a difficulty has been created by two later decisions of Divisional Benches of the Madras High Court wherein a contrary view has been taken. In ravala Nagamma v. The Secretari of State for India, (1913)M. W. N. 75, a Division Bench consisting of Benson and Sundara Ayyar, JJ. , in a short judgment in which no reference was made to the Full Bench decision, held that as in that case no notice had been served on the defaulter under section 8 of the Act II of 1864, there was no proceeding taken against him under the Act and theref