9911796707
TMI Blog1969 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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 plaintiffs against the same defendants and others for an injunction restraining them from selling the three houses alleged to have been wrongly attached by the Collector. Both the suits were defended by the defendants, who pleaded that the three attached houses were the property of Phool Chand, the assessee, and not of the plaintiffs. Certain technical pleas were also raised regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not be an attachment of immovable property in execution of a decree within the meaning of Order 21, rule 54, and the application which was filed by the plaintiffs before the Collector would not be an objection or claim within the meaning of Order 21, rule 58, of the Civil Procedure Code. Hence, the rejection of that application would not be final in the sense that no other remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 specific power conferred on the Collector to recover an arrear of land revenue by attachment and sale of other immovable property of the defaulter. It has not been disputed before me that the only provisions of law, which now are available in Uttar Pradesh for recovery of arrears of land revenue, are contained in the U.P. Zamindari Abolition and Land Reforms Act and the former section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative 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 providing for recovery of arrears of land revenue and the power of the Collector is to be founded on those provisions. Recourse to the provisions of the Civil Procedure Code is to be taken for the purpose of better and more effective application of that power. The only law in our State for recovery of arrears of land revenue is contained in section 279 of the U. P. Zamindari and Land Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 behalf of the respondents, that there is no provision in the U. P. Zamindari Abolition and Land Reforms Act or under the Rules framed thereunder for preferring of claims or objections by third parties to the attachment levied by the Collector and since the plaintiffs preferred such a claim or filed such objection before the Collector, they would be deemed to have invoked the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 their rights in an immovable property and would be governed by article 120 of the Limitation Act. The suit of the plaintiffs, therefore, was not barred by limitation. The result is that this appeal is allowed and the order of the court below remanding the case is set aside. As the finding on merits is in favour of the plaintiffs, their suit for declaration as prayed for stands decree ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
