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Abdul Karim Husseinbhai Lakdawala Vs. Haji Mahomed HusseIn Haji Abdulrehman - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 565 of 1955
Judge
Reported in(1959)61BOMLR625
AppellantAbdul Karim Husseinbhai Lakdawala
RespondentHaji Mahomed HusseIn Haji Abdulrehman
DispositionAppeal dismissed
Excerpt:
.....officer payable by assessee judgment-creditor-whether judgment-debtor discharged from liability to extent of payment made to income-tax officer-judgment-creditor whether competent to execute decree for such payment made to income-tax officer.;where the liability of the judgment-debtor to pay the decretal amount is discharged by virtue of the provisions contained in section 46(5a) of the indian income-tax act, 1922, the court executing the decree must recognise this statutory discharge of liability to the extent of the payment made and the decree-holder becomes incompetent to execute the decree for the amount paid by the judgment-debtor to the income-tax officer. - - by the third paragraph of sub-section (5a) it is provided that any person making payment in compliance with the notice..........income-tax officer acknowledging payment which by operation of the statute discharges the judgment-debtor's liability for the amount paid. under the civil procedure code there is an analogous provision in order xxi, rule 46(3), which discharges liability of a garnishee on payment by him in court of a debt in respect of which a prohibitory order is issued under clause (i) of sub-rule (1) thereof. 'when a judgment-debtor resists execution in these and other analogous provisions, he asks the court executing the decree to take note of the statutory discharge of liability and not the payment made. he informs the court that by operation of the statute, even though the decree-holder has not received the payment, the liability is to the extent of the payment discharged. in our judgment there is.....
Judgment:

Shah, J.

1. This is an appeal from an order in an execution proceeding. In Suit No. 13 of 1944 of the file of the Civil Judge, Senior Division at Broach, it was decreed that defendant No. 10 Mahomad Hussein Haji Abdulrehman do pay Rs. 24,426-5-4 to the heirs of one Kadarbhai. After this decree was passed Suit No. 203 of 1949 to administer the estate of Kadarbhai was filed. By the decree in that suit it was directed that Mahomad Hussein Haji Abdulrehman (whom we will hereafter refer to as the judgment-debtor) do pay the decretal amount of Rs. 24,426-5-4 to Abdul Karim Hussembhai Lakdawala who was one of the heirs of Kadarbhai. Abdul Karim Husseinbhai Lakdawala (whom we will hereafter refer to as the judgment-creditor) then filed Darkhast No. 26 of 1951 to recover the amount declared to be-due to him by the decree in Suit No. 203 of 1949. It was contended in that darkhast, that the judgment-debtor had under the orders passed by the Income-tax authorities, paid an amount of Rs. 11,508-9-0 which was payable by the heirs of Kadarbhai to the Income-tax department and the judgment-debtor was to that extent discharged from liability, by virtue of Section 46(5A) of the Income-tax Act.

2. The learned Judge accepted the contention of the judgment-debtor and directed that execution do proceed after giving credit for Rs. 11,508-9-0 to the judgment-debtor. Against that order the judgment-creditor has appealed to this Court.

3. Section 46(5A) of the Income-tax Act in so far as it is material provides that the Income-tax Officer may by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income-tax Officer, so much of the money as is sufficient to pay the amount due by the tax-payer in respect of arrears of income-tax and penalty. By the third paragraph of Sub-section (5A) it is provided that any person making payment in compliance with the notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.

4. In this case, the judgment-debtor was served with a notice issued by the Income-tax Officer under Section 46(5A) to pay Rs. 11,508-9-0 and the judgment-debtor complied with that notice. By the operation of the third paragraph of Sub-section (5A) of Section 46, the amount must be deemed to have been paid under the authority of the judgment-creditors. Of the heirs of Kadarbhai, the judgment-creditor claims to be an assignee and the judgment-debtor having paid the amount under the direction of the Income-tax Officer, he is by statute discharged from liability to the extent of the payment made.

5. But Mr. Chandrachud, who appears on behalf of the decree-holder, contends that under Order XXI, Rule 2, of the Civil Procedure Code, a payment made by the judgment-debtor in satisfaction of the liability under a decree can only be recognised by the executing Court if it is certified by the Court which passed the decree, and payment by the judgment-debtor to the Income-tax Officer not being certified in the manner and on an application made within the period prescribed, the executing Court was incompetent to entertain the plea of partial discharge of liability by virtue of the provision contained in Sub-rule (3) of Rule 2, Order XXI, Civil Procedure Code. In other words it is submitted that even if the liability to pay the decretal amount is discharged by virtue of the provision contained in Section 46(5A) unless the payment is certified in the manner prescribed by Order XXI, Rule 2, the Court executing the decree is unable to recognise the payment, and the only remedy of the judgment-debtor is to proceed in a criminal Court. 'We are unable to accept that contention. By the third paragraph of Sub-section (5A) of Section 46 liability under the decree is discharged to the extent of payment made by the judgment-debtor to the Income-tax department. It is the receipt issued by the Income-tax Officer acknowledging payment which by operation of the statute discharges the judgment-debtor's liability for the amount paid. Under the Civil Procedure Code there is an analogous provision in Order XXI, Rule 46(3), which discharges liability of a garnishee on payment by him in Court of a debt in respect of which a prohibitory order is issued under Clause (i) of Sub-rule (1) thereof. 'When a judgment-debtor resists execution in these and other analogous provisions, he asks the Court executing the decree to take note of the statutory discharge of liability and not the payment made. He informs the Court that by operation of the statute, even though the decree-holder has not received the payment, the liability is to the extent of the payment discharged. In our judgment there is nothing in Sub-rule (3) which precludes the Court executing the decree from recognizing the statutory discharge of liability to the extent of the payment made. Sub-rule (3) of Order XXI, Rule 2 of the Civil Procedure Code is at best a rule of evidence; whereas Section 46(54) of the Income-tax Act enacts a provision which extinguishes liability. In the absence of an intention clearly expressed or necessarily implied in the statute providing for that extinction we will not be justified in holding that the statutory discharge of liability operates only when the payment is certified. By reason of the statutory discharge of liability under Section 46(5A) of the Income-tax Act, the decree-holder becomes incompetent to execute the decree for the amount paid by the judgment-debtor on behalf of the assessee to the Income-tax Officer.

6. We agree with the view of the learned trial Judge that the decree to the extent of the amount paid by the judgment-debtor was unenforceable and dismiss the appeal with costs.


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