B.C. Verma, J.
1. This order shall also govern the disposal of Civil Revision No. 1435 of 1978.
2. S.S. Dhanyakumar Dharamdas & Co. was a partnership firm and carried on the business of banking and financing. It had three partners, Dhanyakumar, Abhaykumar and Dharamdas. Dharamdas had eight annas share in the partnership. The other half share was held by the remaining two partners jointly. In Civil Suit No. 6-B of 1958 of the Court of First Additional District Judge, Jabalpur, the firm, on April 24, 1959, obtained a money decree against one Baijnath Choudha for more than one lakh of rupees. A settlement was arrived at between them and the decree was adjusted. Certain amount was deposited in court for payment to thedecree-holder towards the full satisfaction of the decree. The applicant in this Civil Revision No. 1421/78, i.e., Dey's Medical Stores Private Ltd., who holds a money decree against the firm S. S. Dhanyakumar & Co. and its partners objected to that settlement. This objection was finally rejected by this court, vide order dated April 27, 1977, in Civil Revision No. 774 of 1975. Now a sum of Rs. 12,341 is lying in civil court deposit towards that decree obtained by S.S. Dhanyakumar Dharamdas & Co. against Baijnath Choudha.
3. The two rival claimants to the aforesaid amount of Rs. 12,341 are the I. T. Department on the one hand and the Dey's Medical Stores Private Ltd. on the other. The contention of the decree-holder, i.e., M/s. Dhanyakumar Dharamdas and Company, is that earlier the Department while recovering dues against Dharamdas had attached his eight annas share in the assets of the partnership, got it sold and realised the amount out of that sale. That half share of Dharamdas was purchased by the other two partners whereafter Dharamdas had no share in the assets of the partnership. The further contention is that the decree against Shri Choudha also formed an asset of the partnership and was available as such when Dharamdas' share in those assets was sold. The contention, therefore, is that no assets of the partnership, including the amount of Rs. 12,341 realised towards the decree of the firm against Shri Choudha can be attached by the I.T. Department for any recovery of dues against Dharamdas. The contention on behalf of Dey's Medical Stores is that it has to recover a sum of Rs. 5,695.79 from the firm. Dues to the I.T. Department were not ascertained as no inquiry was made in that behalf and the Department could not be preferred to the other creditors. The lower court, in my opinion, has rightly found that Dharamdas' share in the assets of the partnership was sold and purchased by the other partners. The decree was passed in favour of the firm when the assets of the firm were sold. Necessarily, therefore, the decree should also be included in the assets of the partnership which were sold and were purchased by the two partners, namely, Dhanyakumar and Abhaykumar. It has, therefore, been rightly held that it is Dhanyakumar and Abhaykumar who alone have share in the decretal amount. This question was not seriously disputed before me and I also hold that in this amount of Rs. 12,341, which has been realised towards the satisfaction of the decree of the firm against Shri Choudha, Dharamdas has no interest. As a necessary corrollary, it must follow that no dues against Dhanyakumar can be realised from this amount.
4. The order of the attachment issued to the Additional District Judge, Jabalpur, by the TRO (at page 176 of the lower court's record) shows thatthe recovery was sought to be made not against the firm but against four individuals, namely, Shri Dhanyakumar Jain, Shri Dharamdas Agarwal, Shri Abhaykumar Jain and Shri Jai Kumar Jain. That being so, the recovery out of the amount attached i.e., a sum of Rs. 12,341, can only be effected to the extent of the interest which each of these individuals has in that amount. Undisputedly, Jai Kumar Jain has no interest therein. Besides, I have earlier shown that Dharamdas' interest was got sold by the I. T. Department itself. Dharamdas also, therefore, has no interest therein. The amount thus jointly belongs to Dhanyakumar and Abhaykumar. As they are its joint purchasers, each of them must be held to have a moiety of share therein. Therefore, out of these shares, only that much of amount can be made available to the I.T. Department as is sought to be recovered against these two individuals. The warrant of attachment shows that against Dhanyakumar the amount sought to be recovered is Rs. 425 only. Therefore, out of Dhanyakumar's half share, i.e., Rs. 6,170.50, an amount of Rs. 425 only can be made over to the Department. Of course, against Abhaykumar, the recovery sought to be made is more than Rs. 31,000 and, therefore, his entire share of Rs. 6,170.50 is available to the Department. It were a different matter if the recovery were against the firm in which case it could have been possible for the Department to urge that the assets of individual partners can be proceeded against for the recovery of dues against the firm. That, however, is not the case here. I have earlier shown that the recovery is sought to be effected against the individuals, may be that some of them were the partners of the firm M/s. Dhanyakumar Dharamdas and Company. The result would be that out of the amount of Rs. 12,341, the Department is entitled to get Rs. 6,170.50 (half share of Abhaykumar) and only Rs. 425 towards the dues against Dhanyakumar--total Rs. 6,595.50. The lower court missed this aspect of the case, and, therefore, committed an error in allowing the Department to take away the entire amount. The lower court's order, therefore, needs modification to that extent.
5. On behalf of M/s. Dey's Medical Stores Private Ltd. it was argued that the I.T. Department was not entitled to any preference. It was urged that the amount due to the Department should have been inquired into. It was also argued that in view of the prohibitory orders dated November 15, 1974, and December 16, 1974, issued in favour of M/s. Dey's Medical Stores Private Ltd., the amount should have been made available to it in preference to the Department. In my opinion, these submissions have no substance. The issuance of a recovery certificate by the I.T. Department to its Recovery Officer is enough to show that the amount is due against the person named therein. Nothing could be shown to me that the executing court could go behind the certificate and inquire whether the amountwas actually due. It could not, however, he denied that the Government of India is entitled to claim priority for an cars of income-tax due to it from the assessees over the private debts due to their creditors (See Builders Supply Corporation v. Union of India : 56ITR91(SC) ), and Section 73, CPC. I am, therefore, of the opinion that the claim for opportunity to establish that the tax was not due to the Department was not available to Dey's Medical Stores and that in spite of the prohibitory orders mentioned by it, the Department shall have to be preferred and the arrears of income-tax shall have priority over the dues of Dey's Medical Stores. Reference was also made to Sections 187 and 189(3) of the I.T. Act. In my opinion, in view of my findings aforesaid, these provisions are not attracted. The I.T. Department, as I have shown above, is proceeding against the individual partners. It is not that the tax assessed upon a partner was sought to be recovered from a firm. Similarly, reference to Section 5 is also out of place.
6. The result is that out of the sum of Rs. 12,341, a sum of Rs. 6,170.50 plus Rs. 425--total Rs. 6,595.50, shall be made over to the I.T. Department. The balance shall be available for distribution, among other creditors in accordance with Section 73 of the CPC. Both the revisions, therefore, partly succeed and are allowed to the extent indicated above. There shall, however, be no order as to costs.