JUDGMENT Nagendra Prasad Singh, J. Union of India is the appellant in this second appeal, for setting aside the judgment and decree passed by the learned Munsif, dismissing the suit of the appellant holding it to be not maintainable, which was affirmed in appeal by the learned Additional Subordinate Judge, Arrah. 2. The plaintiff-appellant filed the aforesaid suit for a decree for Rs. 2, 785. 94 against defendant-respondent nos.1 and 2 on the allegation that defendant no.1 was a licensee under the Excise Act, and defendant no. 2 was his surety. It was further stated in the plaint that the Collector of Central Excise, Patna, by his order dated 30th July, 1954, had held that defendant no.1 was liable to pay the aforesaid amount of Rs. 2,785.94, but he did not pay the said amount inspite of certificate cases having been filed against him. According to the plaintiff, it had the right to realise the said amount jointly and severally against the two defendants. 3. This case has a long history. From judgments of the two courts below, it appears that some inspection was made at the premises of defendant no.1 who was a licensee under the Excise Act, and certain irregularities were discovered in the year 1953. On the 30th July, "1954, the Collector of Central Excise, as already stated above, adjudicated the liability of defendant no.1 and directed him to pay the aforesaid amount of Rs. 2,785.94. When defendant no.1 did not pay, a certificate case was filed in accordance with the provisions of the Bihar & Orrissa Public Demand Recovery Act, 1914 (hereinafter referred to as the Recovery Act), giving rise to certificate case no. 329 Misc./B of 1954•55. In the said certificate proceeding one house of defendant no.1 was attached for sale Later an objection was filed on behalf of one M/S. Khuda Bhai Patel, claiming interest in the house in question. That claim was rejected by the Certificate Officer and the property was declared as exclusively belonging to defendant no.1. The aforesaid M/S. Khuda Bhai Patel thereafter filed a title suit for declaration that the attached house really belonged to him. It was numbered as Title Suit No.4 of 1959. This title suit was, however, decreed ex-parte some time in the year 1960-61. The aforesaid M/S. Khuda Bhai Patel thereafter filed a title suit for declaration that the attached house really belonged to him. It was numbered as Title Suit No.4 of 1959. This title suit was, however, decreed ex-parte some time in the year 1960-61. Although the Union of India was a party to the said suit, but none appeared to contest the Same and it was held that the house which had been attached in the certificate proceeding really belonged to the firm, M/S. Khuda Bhai Patel. It appears that nothing could be realised in the certificate case. After the aforesaid ex-parte decree in the title suit, another certificate case was filed against defendant no. 2, the surety showing him as the certificate debtor for that very amount, which was numbered as Miscellaneous case no. 144 of 1961-62. Defendant no. 2 filed an objection in the said certificate proceeding and the main objection on his behalf was that the amount cannot be realised from him. The main objection raised on behalf of defendant No.2 was that because of the acts and omissions of the certificate holder in the earlier suit, the remedy of defendant no. 2, as the surety against defendant no.1 has been impaired and as such he has been discharged under section 139 of Contract Act. In other words, according to defendant no. 2, as the certificate holder did not contest Title Suit no. 4 of 1959 and allowed an ex-parte decree to be passed, holding that the house belonged to M/S. Khuda Hhai Patel, it impaired the right of defendant no.2 against defendant no.1. In that connection it was also pointed out that the house had been transferred in favour of M/S. Khuda Bhai Patel by defendant no.1 after more than two years of the service of notice under section 7 of the Recovery Act, but all these aspects were not brought to the notice of the civil court due to non -appearance of the certificate holder. The Certificate Officer accepted the objection of defendant no, 2 and by order dated 1st April, 1963 dropped the proceedings against him holding that the conduct of the certificate holder had impaired the right of defendant no. 2 as surety, The present suit was filed on 2nd of December, 1963 for a decree of the aforesaid amount jointly and severally against the defendant no. 2, as stated above. 4, Defendant no. 2 as surety, The present suit was filed on 2nd of December, 1963 for a decree of the aforesaid amount jointly and severally against the defendant no. 2, as stated above. 4, Defendant no. 2 filed his written statement and questioned the maintainability of the suit in view of section 46 of the Recovery Act. Again a plea under section 139 of the Contract Act, was also taken apart from a plea of limitation. The trial court on consideration of the materials on the record came to the finding that the suit was barred by section 46 of the Recovery Act. The learned Munsif also herd it to be barred under the Limitation Act, having been filed not within the statutory period prescribed under that Act. He was also of the view that the right of defendant no. 2 as surety, had been impaired and as such he would be deemed to have been discharged from the surety bond in view of section 139 of the Contract Act, and on the aforesaid finding the learned Munsif dismissed the suit holding it to be maintainable. Being aggrieved by the said judgment and decree, an appeal was filed by the Union of India, which was also dismissed by the learned Subordinate Judge affirming the finding of the learned Munsif, regarding bar under section 46 of the Recovery Act, and discharge of the liability as surety under section 139 of the Contract Act. He however, negatived the findings on limitation, saying that the suit was within time. Hence this second appeal. 5. Originally this case was listed before a learned single Judge of this court, who has referred it to a Division Bench. 6. The precise question which is to be answered in this appeal is as to whether under the circumstances set forth above, the present suit is barred under section 46 of the Recovery Act, against both the defendants or only against one. 6. The precise question which is to be answered in this appeal is as to whether under the circumstances set forth above, the present suit is barred under section 46 of the Recovery Act, against both the defendants or only against one. Section 46 of the Recovery Act, is as follows ;-- "Except as otherwise expressly provided in this 'Act, every question arising between the Certificate-holder and the Certificate-debtor or their representatives, relating to the making, execution discharge or satisfaction of a certificate duly filed 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 certificate, shall be determined, not by suit, but by order of the certificate other before whom such question arises, or of such other certificate-officer as he may determine: Provided that a suit may be brought in a civil court in respect of any such question upon the ground of fraud." This section says in clear and unambiguous term that unless expressly provided, every question arising between the certificate holder and the certificate debtor, relating to making execution, discharge or satisfaction of a certificate shall be determined by the Certificate Officer and not be a suit. Section 43 of the Recovery Act, is one such provision where under certain contingencies, a certificate debtor may file a suit. That provision on its plain reading, is not available to a certificate holder. 7. In the instant case the suit has been filed by the certificate holder. In such a situation unless there is some specific provision under the Recovery Act, any question regarding making, execution, discharge or satisfaction of a certificate duly filed, has to be determined in accordance with the provisions of the Recovery Act. In support of this contention the learned counsel appearing for the appellant placed reliance on a Bench decision of this court in Mangtulal Bagaria Vrs. Daya Shankar Gobardhan Das Bhata and others. I may say that the aforesaid case has no relevancy to the facts and circumstances of the present case. It was pointed out in that very judgment that the suit was maintainable, because in the plaint there were allegations of fraud. Daya Shankar Gobardhan Das Bhata and others. I may say that the aforesaid case has no relevancy to the facts and circumstances of the present case. It was pointed out in that very judgment that the suit was maintainable, because in the plaint there were allegations of fraud. Such suits are clearly maintainable because of the proviso to section 46 of the Recovery Act, where it is provided that a suit may be brought in a civil court upon the ground of fraud. In the instant case there is no allegation of fraud in the plaint in respect of earlier certificate proceeding. As such the aforesaid judgment is of no help to the appellant. Learned counsel appearing on behalf of the -appellant, after some argument, had to concede that it was a complete bar so far defendant no. 1, the original Certificate debtor, was concerned. He, however, submitted that this will not operate as bar so far defendant no. 2 is concerned. 8. I shall now determine as to whether the suit is barred under section 46 of the Recovery Act, even so far as defendant no. 2 is concerned. The learned advocate appearing for the appellant submitted that the plaintiff was enforcing surety bond executed by defendant no. 2 in the year, 1949, at the time of grant of a license to defendant no.1. We have looked into the plaint of the suit. It is not for enforcing the surety bond aforsaid. It is a suit for recovery of the amount from the defendants after an attempt to recover the same failed before the Certificate Officer. I have already pointed out that the plaintiff had earlier filed a certificate case separately against defendant no. 2 also. That certificate case was dropped on 1st of April, 1963 on the view that because of the conduct of the present plaintiff in the suit no. 4 of 1959 instituted by M/S. Khuda Bhai Patel, the right of defendant no.1 had been impaired and he would be deemed to have been discharged from the surety bond in view of section 139 of the Contract Act. It does not appear from the records as to whether any step was taken against this order, by filing appeal or revision under the provisions of the Recovery Act. It does not appear from the records as to whether any step was taken against this order, by filing appeal or revision under the provisions of the Recovery Act. In my view, in such a situation section 46 of the Recovery Act, will be a bar to the proceeding even against defendant no. 2, who was a certificate debtor in the second certificate case. In my opinion, the suit is barred by section 46 of the Recovery Act, against defendant no.1 as well as defendant no. 2 and the courts below have rightly decided the said issue against the plaintiff-appellant and I find no reason to interfere with the same. In view of the fact that I have held, that the suit itself is not maintainable, I think there is no necessity of deciding whether defendant no. 2 was discharged of the liability under the Surety bond in view of section 139 of the Contract Act. Accordingly, the appeal fails, but in the circumstances of the case, there will be no order as to costs. P. S. Sahay J, I agree. Appeal dismissed.