1971 (1) TMI 36 - HC - Income Tax

Whether the expression decree for the payment of money in rule 16(1) includes a decree for sale in enforcement of a mortgage under order XXXIV, rule 5, Code of Civil Procedure - held, no - held that terms decree for the payment of money have restricted meaning confining it to a simple money decree

Summary

Issues Involved:
1. Interpretation of "decree for the payment of money" under Rule 16(1) of Schedule II of the Income-tax Act, 1961.
2. Applicability of Rule 16(1) to a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5, Code of Civil Procedure.

Issue-wise Detailed Analysis:

1. Interpretation of "decree for the payment of money" under Rule 16(1) of Schedule II of the Income-tax Act, 1961:

The core issue was whether the expression "decree for the payment of money" in Rule 16(1) of Schedule II of the Income-tax Act, 1961, includes a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5, Code of Civil Procedure (CPC). Rule 16(1) states that after a notice has been served on a defaulter, neither the defaulter nor his representative can deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor can any civil court issue any process against such property in execution of a decree for the payment of money.

2. Applicability of Rule 16(1) to a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5, Code of Civil Procedure:

The facts involved a loan advanced by a bank to a company, with the appellants standing as sureties and mortgaging a property. A compromise decree for sale under Order XXXIV, Rule 5, CPC was passed. The appellants argued that in view of Rule 16(1) of Schedule II of the Income-tax Act, the executing court had no jurisdiction to sell the property. Notices of demand for payment of arrears of income-tax were served on appellant No. 1, and the executing court dismissed the appellants' objection, directing the execution to proceed.

Judgment Analysis:

1. Interpretation of "decree for the payment of money":

The judgment analyzed whether the term "decree for the payment of money" includes a decree for sale of mortgage security. Dwivedi J. opined that the term does not include a decree for sale under Order XXXIV, Rule 5, CPC, while Hari Swarup J. held a contrary view. The judgment noted that the Income-tax Act does not contain substantive provisions to override the rights of a secured creditor. The court emphasized that arrears of income-tax can be realized from the assessee's property, but this does not affect the rights of a mortgagee unless a valid law states otherwise. The court concluded that Rule 16(1) should be strictly construed, and the expression "decree for the payment of money" should be given a restricted meaning, excluding a decree for sale under Order XXXIV, Rule 5, CPC.

2. Applicability of Rule 16(1) to a decree for sale in enforcement of a mortgage:

The court distinguished between a simple money decree and a decree for sale of mortgaged property. It noted that a preliminary decree under Order XXXIV, Rule 4, CPC, does not completely dispose of the suit and does not grant the mortgagee the right to execute the decree immediately. A final decree for sale under Order XXXIV, Rule 5, CPC, is different from a simple money decree, as it involves the sale of mortgaged property. The court highlighted that a mortgagee-decree-holder cannot be deprived of his security or right to enforce sale unless a clear statutory provision exists. The judgment concluded that Rule 16(1) of Schedule II applies to decrees for payment of money in favor of simple creditors, not to decrees for sale under Order XXXIV, Rule 5, CPC.

Conclusion:

The court agreed with Dwivedi J.'s view, stating that the expression "decree for the payment of money" in Rule 16(1) does not include a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5, CPC. Consequently, the appeal was dismissed with costs.