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Punjab and Sind Bank Ltd. Vs. Raja Ram Sri NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 1070 of 1965
Judge
Reported in[1970]75ITR402(All)
ActsCode of Civil Procedure (CPC) , 1908 - Sections 63 and 151
AppellantPunjab and Sind Bank Ltd.
RespondentRaja Ram Sri NaraIn and ors.
Appellant AdvocateS.N. Kacker and ;Bharatji Agarwal, Advs.
Respondent AdvocateShanti Bhushan, Adv. General and ;R.R. Misra, Adv.
Excerpt:
- - i should also like to mention that in the division bench case of this court there had been no prior attachment made by the collector. this case is clearly distinguishable as noorder for rateable distribution in the case in hand was passed......the 19th of september, 1955. naraini devi filed objections under order 21, rule 58, of the code of civil procedure. her objections were dismissed and she filed a regular suit under order 21, rule 63, civil procedure code. when that suit was dismissed, she filed an appeal in this court. this appeal was also dismissed and the attachment made by the collector on the 19th of september, 1955, was upheld. because of naraini devi's objections, her suit and her appeal to this court, the auction sale of the house by the collector remained stayed. in the meantime, the house had been attached and sold in the execution of the decree in favour of the bank.4. after the house had been sold, the income-tax officer filed an application under section 151 of the code of civil procedure, claiming priority.....
Judgment:

S.K. Verma, J.

1. This is a decree-holder's application in revision and it arises out of the following facts.

2. The applicant (hereinafter referred to as ' the bank ') had obtained a decree for a sum of. Rs. 32,000 from the Court of the 1st Additional Civil, Judge of Kanpur in Suit No. 132 of 1958 against Messrs. Raja Ram Sri Narain and Smt. Naraini Devi, widow of Raja Ram. The bank put the decree in execution and attached house No. 24/88-A, Birhana Road, Kanpur. The house was sold on the 4th of September, 1961 for a sum of Rs. 1,11,000.Another firm of Bombay, Messrs. Bhawani Prasad Girdhar Lal (hereinafter referred to as 'the Bombay firm'), had a decree of a Bombay court against Sri Narain, about whom it was said that he was carrying on business in the name and style of Messrs. Raja Ram Sri Narain. This decree was transmitted to the Court of the 1st Civil Judge of Kanpur for execution. When the house was sold, the Bombay firm applied in the Court of the 1st Civil Judge for attachment of the balance of the sale proceeds after satisfaction of the decree in favour of the bank. On the 8th of September, 1961, a precept was received from the Court of the 1st Civil Judge attaching the balance of the sale proceeds for the satisfaction of the decretal amount due to the Bombay firm.

3. The Judgment-debtors had also to pay a considerable sum (Rs. 2,07,343) as arrears of income-tax dues. A recovery certificate in respect of arrears of income-tax dues had been sent by the Income-tax Officer under Section 46(2) of the Indian Income-tax Act to the Collector of Kanpur. The Additional Collector of Kanpur had attached the house mentioned above on the 19th of September, 1955. Naraini Devi filed objections under Order 21, Rule 58, of the Code of Civil Procedure. Her objections were dismissed and she filed a regular suit under Order 21, Rule 63, Civil Procedure Code. When that suit was dismissed, she filed an appeal in this court. This appeal was also dismissed and the attachment made by the Collector on the 19th of September, 1955, was upheld. Because of Naraini Devi's objections, her suit and her appeal to this court, the auction sale of the house by the Collector remained stayed. In the meantime, the house had been attached and sold in the execution of the decree in favour of the bank.

4. After the house had been sold, the Income-tax Officer filed an application under Section 151 of the Code of Civil Procedure, claiming priority on behalf of the Union of India. He claimed the entire sum towards the satisfaction of the arrears of income-tax dues as the dues were in excess of the amount realised by the sale.

5. The learned 1st Additional Civil Judge of Kanpur has allowed the application of the Income-tax Officer and the bank has come up in revision to this court.

6. The first point argued by Mr. S. N. Kacker, learned counsel for the bank, was that the Income-tax Officer had no right to move the court under Section 151, Civil Procedure Code. He has contended that the proper procedure was for the Collector to attach the sale proceeds by a notice to the court executing the decree under Order 21, Rule 52, of the Code of Civil Procedure. The short answer to this argument is that an attachment had already been made of the house in the year 1955. That attachment was held to be valid right up to this court. The house was sold while that attachment subsistedas it undoubtedly could be sold under Section 63 of the Code of Civil Procedure. The attachment, however, made earlier would not cease to operate and it still subsisted and it would fasten itself on the sale proceeds. realised by the sale of the house. It was so held by Vivian Bose J. in Zumberlal Chhotelal Agarwal v. Sitaram A.I.R. 1937 Nag. 80. There was thus no necessity for the Collector again to attach the sale proceeds under the provisions of Order 21, Rule 52, of the Code of Civil Procedure. Mr. Kacker relied upon a Division Bench decision of this court in Hindustan Commercial Bank Ltd. v. Collector, [1964] A.L.J. 505. In that case the application under Section 151, of the Code of Civil Procedure, had been filed by the Collector. The Division Bench held that the Collector's powers were limited and he could only proceed under Order 21, Rule 52, of the Code of Civil Procedure, and not by means of an application under Section 151 of the Code of Civil Procedure. Before the Division Bench a Full Bench decision of the Madras High Court in Manickam Chettiar v. Income-tax Officer : [1938]6ITR180(Mad) . was cited. In this case a Full Bench of the Madras High Court has laid down that the court has inherent power under Section 151 of the Code of Civil Procedure to order the payment of Crown debts to the Government on the mere application of the Income-tax Officer and no suit was necessary. It was held, further, in that case that Section 46 of the Indian Income-tax Act was not exhaustive and it did not take away the right of the Crown to enforce payment of debts due to it by a mere application. The Division Bench expressed no opinion with regard to the correctness of the Full Bench decision of the Madras High Court. The learned judges, however, distinguished that case on the ground that the application under Section 151, of the Code of Civil Procedure, in the Madras Full Bench case had been filed by the Income-tax Officer and not by the-Collector. That distinction exists in the persent case also. The application, under Section 151, of the Code of Civil Procedure, was not made by the Collector but by the Income-tax Officer. The decision of the Divison Bench case of this court is authority only for the proposition that the-Collector cannot move the court under Section 151, but can proceed only under Order 21, Rule 52, of the Code of Civil Procedure. I should also like to mention that in the Division Bench case of this court there had been no prior attachment made by the Collector. This decision, therefore, cannot be of any help to the bank.

7. Mr. Kacker's next contention was that, once the house had been sold, the sale proceeds cased to be the property of the judgment-debtor and the court, therefore, could not order payment to the Income-tax Officer. He has relied upon a decision of the Calcutta High Court in Basanta Kumar Bhattacharjee v. Panchu Gopal Dutta : AIR1956Cal23 . In this case it was held that where-an executing court allows a claim for rateable distribution by a decree-holder and all that remains to be done is the ascertainment of the exactamount which each decree-holder is entitled to and payment of the same,the money in the hands of the court can no longer be considered in law tobe the judgment-debtor's money. This case is clearly distinguishable as noorder for rateable distribution in the case in hand was passed. In supportof Mr. Kacker's argument, learned counsellor the Bombay firm has citedbefore me a Division Bench decision of the Lahore High Court in Oudh.Commercial Bank Ltd v. Secretary of State, A.I.R. 1935 Lah. 319. There is an observation in thisdecision to the effect that once the sale takes place the proceeds of the salecease to belong to the judgment-debtor, but are held by the court in trustfor the benefit of the creditor executing the decree and such other creditorsas had applied for rateable distribution under Section 73 of the Code ofCivil Procedure. This case too is distinguishable because no prior attachment by the Collector had been made.

8. No other point has been urged.

9. The application in revision is dismissed, but, in the circumstances of thecase, I make no order as to costs.


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