Judicial determination on whether a transferee from a defaulter can seek civil remedies, absent allegations of fraud.

1 This appeal arises from the Decree and Judgment dated 30/03/1994 in O. S. No. 485/1992 on the file of the Sub Court, Ernakulam. Appellants are defendants 1 and 2 and respondents are the plaintiff and the 3rd defendant respectively. The suit is one for declaration and injunction. According; to the plaintiff he purchased the plaint schedule property for a total consideration of Rs. 75,000 by sale deed No. 806/1990 of Maradu Sub Registry from the 3rd defendant. He was served with revenue recovery notice dated 07/02/1992 calling upon him to pay an amount of Rs. 1,00,000 with interest failing which the plaint schedule property would be proceeded against. The recovery is for realisation of customs penalty due from the 3rd defendant, the vendor. The appellants (defendants 1 and 2) contended that notice under S.7 of the Kerala Revenue Recovery Act had already been served on the defaulter, 3rd defendant, as early as on 19/08/1985 and hence the sale is hit by S.44 of the . It was also contended that notice under S.36 had also been served on the 3rd defendant and finally it was contended that the suit itself was not maintainable in view of the specific bar under S.72 of the . The Court below framed issues in terms of the relief claimed in the plaint including the one on maintainability.

2 Though there is a specific bar on the civil court under S.72, it was held that the plaintiff is not a representative of the defaulter, the 3rd defendant. It was also held that the plaintiff was not claiming any right through the 3rd defendant. Still further it was held that whether the purchase of the property by the plaintiff from the 3rd defendant, who admittedly is the defaulter, is with intention to defeat the right of the State is to be determined by the civil court. We are afraid the approach of the court below cannot be appreciated. S.72 of the Kerala Revenue Recovery Act , 1968 reads as follows:
"72. General bar to jurisdiction of Civil Courts save where fraud alleged.-- Except as otherwise expressly provided in this Act, every question arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such demand, shall be determined not by suit, but by order of--
(i) the Board of Revenue, where the Collector is a party to the question;
(ii) the Collector, in other cases:
Provided that a suit may be brought in a Civil Court in respect of any such question on the ground of fraud."
It is crystal clear that any question relating to execution, discharge or satisfaction of a demand under the Act, arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter is outside the purview of adjudication by the civil court. Those are matters to be considered either by the District Collector or by the Board of Revenue. Apparently the plaintiff is aware of the position and hence only he had approached the Government and the Government, as a matter of fact, had stayed the recovery proceedings as noted by the court below, by Government Order No. 22776/S1/92/ RD dated 15/04/1992.

3 Admittedly the plaintiff purchased the property from the 3rd defendant, after he became a defaulter. Defaulter is defined under S.2(e) as "a person from whom an arrear of public revenue due on land is due, .....". It is the contention of the respondent / plaintiff that dues to the customs is not public revenue due on land. Public revenue due on land is defined under S.2(j) of the Act to mean "........ the land revenue charge on the land and includes all other taxes, fees and cesses on land, whether charged on land or not and all cesses or other dues payable to the Government on account of water used for