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TMI Blog1969 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... were attached by the Collector for sale by auction. Smt. Kalawati and her son, Binda Prasad, made an application before the Collector stating that the houses attached belonged to the applicants with which the assessee, Phool Chand, had nothing to do and the same be released from attachment. The Collector rejected that application, taking the view that under the law no such application could be entertained. An appeal against of the Collector was this order dismissed by the Commissioner. Smt. Kalawati and her son, Binda Prasad, then instituted Suit No. 184 of 1962 in the Court of the First Civil judge, Kanpur, on December 1, 1962, for a declaration that the three ouses attached were not liable to be sold in respect of realisation of arrears of income-tax dues from Phool Chand or Sheo Prasad Phool Chand. To this suit were imploaded as first defendant, the Union of India, as second defendant, the Income-tax Officer, and as third defendant, Phool Chand. It may be mentioned that before instituting the said suit the plaintiffs had given notice to the first and second defendants under section 80 of the Civil Procedure Code. Another suit was also filed by Kalawati and Binda Prasad as plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Additional District Judge allowed the appeal of the defendants, set aside the decree of the court below in the said suit and remanded the case to the court of first instance for recording of findings on the question of limitation in the light of the directions given. In the other suit, which was for injunction, the appeal of the defendants was also allowed and the learned Additional District Judge, holding that it was misconceived, dismissed it. Now Smt. Kalawati and Binda Prasad, the plaintiffs, have come up in appeal before this court in Suit No. 184 of 1962. They have conceded to the decree in the connected suit for injunction and have not appealed from the decree of the dismissal of that suit. Sri Sudhir Chandra Agarwal, learned counsel appearing for the plaintiff-appellant, in support of the appeal contended that the suit was governed by article 120 of the First Schedule of the Limitation Act, 1908, and the court below was in error in holding that it, was governed by article 11 of that Schedule and thus wrongly remanded the case to the trial court for further enquiry on the question of limitation. It was submitted that the attachment made by the Collector could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises for determination in this appeal is whether the order of the Collector rejecting the application of the plaintiffs for releasing the houses in suit from attachment or for lifting the attachment on the houses in suit was made under Order 21, rule 58, of the Civil Procedure Code, and the instant suit which was subsequently brought would be a suit under Order 21, rule 63, Civil Procedure Code. On behalf of the respondents reliance was placed on Deo Sharma v. Chartered Bank of India and Union of India v. Parvati Kuwar . The former case was decided by a Division Bench of this court. In that case it was held that the attachment of an immovable property by the Collector in the course of recovery of income-tax dues will be deemed to be in exercise of powers under Order 21, rule 58, of the Civil Procedure Code, as there was no provision under section 146 of the U. P. Land Revenue Act for attachment of other immovable property of the defaulter though there was provision for the sale of such property. I do not think the ratio of the decision of that case helps the repondents as now under section 279 of the U.P. Zamindari Abolition and Land Reforms Act, in its clause (f), there is specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue an that in thus proceeding he is, under the proviso, to have all the powers a civil court has under the Code. The sub-section does not prescribe two separate procedures ...... In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub-section (2) of section 46." From the above quoted observations of the Supreme Court it is clear that the tax dues are recoverable as arrears of land revenue as that is the only mode of recovery authorised by the body of sub-section (2) of section 46 of the Income-tax Act. The proviso to that section merely confers upon the Collector some anciliary or additional power for the better and more effective application of the only mode of recovery. According to the Supreme Court, the law, as I understand, is that one has to look to the power of the Collector under the relevant law of the State provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his powers under clause (f) of section 279 of the Abolition Act and in good faith attaches the property of a third person other than the assessee who owes the tax liability, it is open to the aggrieved third party to apply to the Collector apprising him of the true situation. Such an application would not be deemed to be a claim preferred or objection raised to attachment within the meaning of Order 21, rule 58, Civil Procedure Code, as the said provision in terms applies only when an attachment is made in execution of a decree as defined in the Civil Procedure Code. The learned counsel for the respondents has not placed before me any provision of the Income-tax Act or of any other law for the time being in force that the recovery of the tax dues amounts to an execution of a decree for recovery of money. If the contention of the learned counsel for the respondent is accepted, then, I will have to import a fiction in the law which is not there that under section 46(2) of the Income-tax Act, the recovery of arrears of tax on a certificate issued by the Income-tax Officer will be deemed to be an execution of a decree for money passed by a civil court. It was then submitted, on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning Order 21, rule 58, Civil Proceduare Code. In any view of the matter, as the facts of this case show, the Collector refused to entertain the application. For a moment let it be assumed that it was an application under Order 21, rule 58, of the Civil Procedure Code. The Collector did not adjudicate upon it on merits. He just rejected it on the ground that it did not lie. I do not think such an order passed by an execution court under Order 21, rule 58, can be said to be an order rejecting the claim or the objection after adjudicating upon it on merits. It would be as if no application was made under Order 21, rule 58, of the Civil Procedure Code. There is no bar in law operating upon the right of a third party whose property has been wrongly attached to straightaway file a suit in the civil court for declaration of his rights in regard to that property. For the reasons given above, I am of the view that the learned judge of the court below was in error or thinking that the instant suit filed by the plaintiffs was one under Order 21, rule 63, of the Civil Procedure Code. I agree with the learned counsel for the plaintiffs-appellants that the suit was one for a declaration of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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