TMI Blog1968 (9) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Salem attached the bus and put it up for sale. The plaintiff put in a claim for the amount due to him under the hire-purchase agreement. He seems to have been asked to produce a number of documents in support of his claim. But, in spite of all that he did, nothing was heard about his claim and ultimately the bus was sold. The plaintiff thereafter claimed the amount due to him, but that was not paid. He then filed the suit out of which this second appeal arises, claiming that the bus was sold on an understanding between him and the Collector that it was to be sold free of his rights under the hire purchase agreement and he was to be paid the amount due to him. This was disputed by the defendants and the trial court upheld their con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower appellate court proceeds as though Peer Khan had no interest at all in the bus. There is no doubt that the plaintiff was the owner of the vehicle and Peer Khan Sahib was only a hirer. There is also no doubt that, as a party to the hire-purchase agreement, Peer Khan Sahib had certain rights in the property. The property itself has been sold for Rs. 2,502 and, therefore, even if the plaintiff succeeds in getting a decree for Rs. 1,850 the defendants would retain a sum of Rs. 652. This is the extent of Peer Khan Sahib's interest. Supposing for instance this bus had been sold for Rs. 10,000 the defendants would be entitled to retain the balance after deducting Rs. 1,850 due to the plaintiff. Thus, the decree of the lower appellate co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled by a Bench of this court. The Bench in that connection pointed out that it was possible for an aggrieved party to file a suit under Order 21, rule 63, Civil Procedure Code, but that it did not bar the issue of a writ. But it must be noticed that that decision was rendered when the proviso to section 46(2) of the Indian Income-tax Act, 1922, inserted by the Act 18 of 1933, was in force. That proviso is as follows : " Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount, have the powers which under the Civil Procedure Code, 1908, a civil court has for the purpose of the recovery of an amount due under a decree. " Before this proviso was added to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Officer naturally proceeded to point out that the remedy open to a person whose property was attached under the provisions of section 46(2) of the Indian Income-tax Act was to file a petition under Order 21, rule 58, Civil Procedure Code, and if he fails therein, to file a suit under Order 21, rule 63, Civil Procedure Code. But subsequently, perhaps, in order to get over the effect of the judgment of the Supreme Court in Purshottam Govindji Halai v. Additional Collector of Bombay, the old proviso to section 46(2) has been substituted by the following proviso : " Provided that without prejudice to the powers conferred by this sub-section the Collector shall, for the purpose of recovering the amount specified in the certificate, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure, 1908. If he exercises the former power, it is the Revenue Recovery Act that will apply. If he exercises the powers under the Civil Procedure Code, its provisions will apply. Section 5 of the Revenue Recovery Act, 1890, is as follows : " 5. Where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the District in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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