9911796707
TMI Blog1977 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Tahsildar issued a notice of demand, Ex. A-3, dated March 30, 1959, under s. 25 of the Revenue Recovery Act, and this notice was served on the defaulter by affixture on the house. An attachment warrant ' Ex. A-2, dated March 30, 1959, was issued on the same date, and this was also served by affixture. While so, on June 9, 1959, the 2nd respondent executed a mortgage in respect of the said house in favour of the first respondent, the Repalle Co-operative Bank Limited, Repalle (hereinafter called 'the Bank'), for a sum of Rs. 2,500. The 2nd respondent executed another mortgage, Ex. B-1, on August 20, 1959, in favour of one Gaddipati Venkateswara Rao. The attachment notice, Ex. A-2, was served on the 2nd respondent on September 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the mortgage in favour of the bank was void under s. 281 of the new I.T. Act, 1961, as the mortgage was effected during the pendency of the proceedings for recovery of income-tax, that it was intended to defraud the revenue and that the sale was effected after proper publication. On the same date, the Special Deputy Collector passed an order, Ex. B-3, dated April 27, 1965, confirming the sale and issued a sale certificate, Ex. B-4, dated April 27, 1965, in favour of the appellant. On July 15, 1965, the Special Deputy Tahsildar, issued notice, Ex. B-5, to the appellant to take delivery of the property and actual delivery was effected on August 11, 1965, vide Ex. B-6. The bank then filed a petition, E.P. No. 37/1973, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in favour of the bank, the said sale would not prevail over the mortgage which was for valuable consideration and without notice of attachment. In that view, the learned Subordinate judge dismissed the appeal. In this Civil Miscellaneous Second Appeal, Sri T. Seshagiri Rao, learned counsel for the appellant, sought to contend that the mortgage was effected during the pendency of the proceedings for recovery of arrears of income tax and, therefore, the mortgage in favour of the bank would be void under s. 281 of the Act. I do not think this contention can be accepted because by the date of the execution of the mortgage, Ex. A-5, dated June 9, 1959, the new I.T. Act of 1961 had not come into force. Therefore, the provisions of s. 281 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant would be subject to the mortgage on the basis of which the award was passed in favour of the bank. It is then contended that the application filed by the bank for setting aside the sale was under r. 60 of Sch. 11 of the Rules framed under the Act, and that the said application having been rejected, the bank should have preferred an appeal and not having done so the said order would become final. But this contention also is devoid of any merit. The bank is not challenging the sale itself but it is only contending that the sale is subject to the mortgage created in favour of the bank, and that the bank is entitled to execute the award against the mortgaged property. Even assuming that the sale in favour of the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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