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Union of India (Uoi) Vs. Metherukunju Moosakutty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 228 of 1975
Judge
Reported inAIR1980Ker182
ActsKerala Revenue Recovery Act, 1968 - Sections 3 and 60; Central Excise Act, 1944 - Sections 11
AppellantUnion of India (Uoi)
RespondentMetherukunju Moosakutty and ors.
Appellant Advocate T.R.G. Warrier, Adv.
Respondent Advocate C.K.S. Panicker,; P.G.P. Panicker,; V. Bhaskara Menon
DispositionAppeal dismissed
Cases ReferredNedungadi Bank Ltd. v. Tahsildar
Excerpt:
property - auction - sections 3 and 60 of kerala revenue recovery act, 1968 and section 11 of central excise act, 1944 - in case of preference of one creditor over other such preference operate in matter of discharge of liability - after decree debt due to decree holder satisfied by execution and rights in property conveyed to auction purchaser - union government as creditor cannot seek to reopen sale - held, appellant could not succeed under scheme of revenue recovery act or under doctrine of priority for crown debts. - - 1. this appeal is by the union of india against the decree of the court below granting injunction to the plaintiffs in the suit restraining the defendants, the state of kerala as well as the union of india from taking steps under the kerala revenue recovery act.....subramonian poti, j.1. this appeal is by the union of india against the decree of the court below granting injunction to the plaintiffs in the suit restraining the defendants, the state of kerala as well as the union of india from taking steps under the kerala revenue recovery act against the plaint schedule items for recovery of amounts claimed as due to the second defendant, union of india. there are two plaintiffs in the suit, the second plaintiff being the wife of the first plaintiff. they claim to be the owners of the plaint schedule items, item no. 2 being the building situated on item no. 1 which is land of an extent of 22 cents. the plaint items were purchased by the plaintiffs undera sale deed, ext. a1, dated 10-4-1967, executed by one janaki amma and her 5 children. that the.....
Judgment:

Subramonian Poti, J.

1. This appeal is by the Union of India against the decree of the court below granting injunction to the plaintiffs in the suit restraining the defendants, the State of Kerala as well as the Union of India from taking steps under the Kerala Revenue Recovery Act against the plaint schedule items for recovery of amounts claimed as due to the second defendant, Union of India. There are two plaintiffs in the suit, the second plaintiff being the wife of the first plaintiff. They claim to be the owners of the plaint schedule items, item No. 2 being the building situated on item No. 1 which is land of an extent of 22 cents. The plaint items were purchased by the plaintiffs undera sale deed, Ext. A1, dated 10-4-1967, executed by one Janaki Amma and her 5 children. That the suit property originally belonged to one Velayudhan Pillai is not in dispute. It was inherited by his widow Janaki Amma and the 5 children, who jointly executed Ext. Al sale deed. At the time the sale was taken by the plaintiffs the property comprised therein appears to have been encumbered. Out of the consideration of Rs. 40,000 a sum of Rs. 30,200 was reserved with the plaintiffs for discharging a prior debt charged on the plaint items under a registered mortgage deed of 1959 in favour of the State Bank of Travancore. The Bank had obtained a decree against the vendors based on the mortgage in the suit O. Section 2 of 1964 of the Sub Court of Quilon. A sum of Rs. 2,500 was reserved with the plaintiffs for discharging another prior debt charged on the plaint item under a registered panayan of the year 1960 in favour of one Pareed Kunju. Pareed Kunju had obtained a decree for sale in O. Section 37 of 1966 of the Subordinate Judge's Court, Quilon. According to the plaintiffs they discharged the decree amounts due to these creditors and paid the balance of the consideration to the vendors. That they made such payments is not in controversy. Under the terms of the sale deed the vendors had undertaken to discharge another decree debt, that in O. S. No. 106 of 1964. The decree-holder in that suit had brought to sale l/6th share of one of the vendors, Laksh-mana Kumar and he himself purchased such share in auction. He filed a suit for partition against the plaintiffs and others for such l/6th share as O.S. 704 of 1968 of the Subordinate Judge's Court, Quilon. He obtained a preliminary decree. Subsequently plaintiffs purchased the l/6th rights of the decree-holder auction-purchaser in O. Section 106 of 1964 by payment of Rs. 1.000 on 31-3-1969. Besides these debts which had been diclosed by the vendors at the time of the sale, there were other liabilities undisclosed at the time of the sale. Those had also to be discharged by the plaintiffs to save the property purchased by them. In a suit O. S. No. 388 of 1964 of the Sub Court of Quilon the plaint items had been attached before judgment in a suit againstthe vendors. After the decree the items were sold in execution and were purchased by the decree-holder himself. This right was purchased by the plaintiffs by paying a consideration of Rs. 4,200 tothe decree-holder auction-purchaser under a sale deed dated 19-6-1969. Ext. A6 is the sale certificate and Ext. A7 is the sale deed taken by the plaintiffs from the decree-holder auction-purchaser in O. S. No. 388 of 1964 of the Munsiff's Court of Quilon. The plaint items had been similarly attached before judgment and later sold in auction in O. S. No. 643 of 1963, at which court sale they had been bid by the decree-holder himself. The plaintiffs paid the amount due to the decree-holder and obtained an order setting aside the sale. It is thus claimed by the plaintiffs that they had invested Rs. 48,736.50 for perfecting title to the plaint items.

2. Pursuant to the purchase by theplaintiffs in court auction mutation of revenue records was effected in the name of the plaintiffs in the village office.

3. While so, proceedings were taken under the Revenue Recovery Act for recovery of a sum of Rs. 58,708. 26 alleged to be due from Janaki Amma, one of the vendors of the plaintiffs. This amount was claimed as due by way of duty and penalty to the Central Excise Department, and such claim arose out of the business in tobacco conducted by Janaki Amma as licensee. Though the licence was in the name of Janaki Amma, proceedings were taken against the plaint items as if Janaki Amma and her children were really conducting the business and the licence in favour of Janaki Amma was really to run a business on behalf of herself and her children. The plaintiffs disputed the right of the Central Excise Department to proceed against the properties of the plaintiff for recovery of the amount due to the Central Government from Janaki Amma. In view of the purchase by the plaintiffs from the vendors under Ext. Al, it was contended that no further proceedings for sale of the plaint items could be taken under the Revenue Recovery Act. Even assuming that Janaki Amma was liable to pay dues as claimed it would only be her l/6th share that would be answerable. It was said that for other reasons Janaki Amma's share also would not be answerable. Besides the sale deed Ext. Al the plaintiff had also obtained the sale under Ext. A7 pursuant to the sale in execution of the decree in O. S. No. 388 of 1964 and that being the case the rights, if any, of the Excise Department to claim the amount due from Janaki Amma by proceeding against her rights over the plaint property were said tohave been extinguished. There was a further plea that at any rate the plaintiffs having discharged the amounts due under mortgages and otherwise charged on the property they should be subrogated to the position of such mortgagees and holders of charge in respect of plaint items and any recovery proceedings could only be subject to the rights of the plaintiffs. It was also contended that the business in tobacco was conducted by Janaki Amma as licensee on her own account and not on account of her children, and further that the steps taken against Janaki Amma under the Revenue Recovery Act would not be in accordance with law, there being no issue of proper demand notice as required.

4. The State of Kerala and the Union of India filed separate written statements. The contentions raised in these written statements are practically same. According to the defendants Sri Velayudhan Pillai was conducting tobacco business till his death and after his death the trade was continued by his widow Janaki Amma on behalf of herself and her children. It was further contended that the plaint Items were attached by the Government ' for recovery of Central Excise dues on account of the business run by Janaki Amma on her own account and on behalf of her children. Such attachment was effected as early as on 25-11-1964. If the transfer of registry had been effected in favour of the plaintiffs on the basis of the court sale that was without noticing the existence of an attachment as early as in 1964. The written statement further mentioned the attempts made by the legal heirs of Velayudhan Pillai to avert revenue recovery proceedings which delayed the proceedings considerably. Particular reference is made to the suit O. Section 734 of 1967 filed by one V. Gopala-krishnan Nair, one of the vendors under Ext. Al for an injunction restraining revenue recovery proceedings against the plaint schedule properties, alleging that these properties were not liable to be proceeded against for the recovery of Central Excise dues. The said suit was dismissed. It is contended that the decision in the suit operates as res judicata. According to the written statement the plaint items were under attachment effected as early as on 25-11-1964 and therefore were answerable for the excise dues. The question that the court had to decide was whether, in these circumstances, the plaintiffs were entitledto the injunction restraining the proceedings for revenue recovery for the amount due to the second defendant.

5. It may be noticed that while the plaintiff offered himself as a witness and was examined as P. W. 1 and produced Exts. A1 to A29 in support of his case, no witness was examined on the side of the defendants and no documentary evidence was also adduced.

6. The court below found on the evidence before it that the State had not attempted to prove its case that the business said to be run by Janaki Amma as licensee was really a business run on behalf of her children also and that there-lore it has to be found that it was the business of Janaki Amma alone, that she would be liable for the amounts claimed to be due as Central Excise Duty and Penalty, that attempt had not been made to show that proper proceedings were taken against Janaki Amma, that pursuant to an attachment effected earlier to the attachment for the Central excise dues made in November, 1964, the property had been brought to sale in O. S. No. 388 of 1964 and sold, that the said sale right had devolved on the plaintiffs and therefore there was no scope for any revenue recovery against the property of the plaintiffs. Consequently, the decree prayed for was granted. This is challenged in this appeal.

7. In the absence of evidence on the side of the defendants in support of the contention that though the license for conduct of the tobacco business was in the name of Janaki Amma, in fact, the business was run by herself and her children, such a case cannot be found. It is not disputed that the properties which are the subject of the suit originally belonged to Velayudhan Filial and were inherited by the vendors under Ext. Al. If 5 of the 6 vendors are not shown to be answerable for the demand by the Excise Department of duty and penalty amounting to Rs. 58,708.26 it would naturally follow that if any question of liability to answer arises, that would be only against Janaki Amma and therefore only the l/6th share of Janaki Amma would be answerable. The attempt of the appellant is to salvage the case in so far as it concerns the said l/6th share.

8. The plea of res iudicata as rightly found by the court below deserves no notice, as the written statement does not indicate has any question of res judicataarises. Merely because some suit (Ext. Al) was filed by one of the vendors earlier and that suit was dismissed the plea of res judicata cannot be found. Neither the pleadings nor any other material goes to show that there is any basis to accept the plea of res judicata.

9. Though, there is the plea set up in the written statement that the sale deed taken by the plaintiffs is fraudulent, that again is a matter which remains unsubstantiated and rightly therefore serious notice was not taken of that plea.

10. The case of the defendants in the written statement is that for realisation of an amount of Rs. 54,231.24 advised by the Central Excise Department to the Revenue Authorities of the State Government an attachment was effected on 25-11-1964 and it is pursuant to this attachment that the plaint items were put up for revenue sale or 29-12-1969. Before the revenue auction took place the plaintiffs came to court to restrain such auction. By the time the properties were so brought up for revenue sale they had already been sold in court auction and purchased by the plaintiff from the auction purchaser. For the Union of India it is contended that such court auction and subsequent sale to the plaintiff will not bind the defendants, at least in regard to the share of Janaki Amma in view of the attachment of 25-11-1964. To save that l/6th share the plaintiffs rely on Ext. A6, the sale certificate in O. S. No. 388 of 1964 and Ext. A7, the sale deed taken by the plaintiffs from the auction-purchaser. The court sale in O. S. No. 388 of 1964 was pursuant to an attachment effected on 24-6-1964 as evidenced by Ext. A9 attachment list. Therefore, it could be seen that the properties had been attached before the attachment under the Revenue Recovery Act. When, pursuant to the court attachment, the plaint items were brought to sale there was no application for ratable distribution by the Union of India (assuming that a creditor who has caused an attachment under the Revenue Recovery Act to be effected could also claim ratable distribution). The properties were purchased in court auction and that right was conveyed to the plaintiffs. That would extinguish any subsisting attachment over the property effectively and after the court sale there would be no scope for proceeding against the property pursuant to the attachment under the Revenue Recovery Act. In answer to this the con-tention raised by the learned counsel Sri Govinda Warrier on behalf of the appellant is twofold. Firstly the case attempted to be made out is that the general law of priority of Crown debts would enable the Government, notwithstanding the court sale, to claim that the Government should be allowed to proceed against the properties and bring them to sale. The other contention urged with lesser vehemence is that the scheme of the Travan-core Cochin Revenue Recovery Act, which was the Act in force at the time of attachment, must be taken to indicate the recognition of the rule of priority for Crown debt, and therefore, the principle of such priority would be available even apart from any rule of common law. These interesting questions arise for decision in this appeal,

11. Section 11 of the Central Excises and Salt Act, 1944 provides for recovery of sum due to Government by way of duty and any other sums of any kind payable under the provisions of the Act and Rules. Besides other modes of recovery the section provides that recovery can be made by issue of certificate to the Collector of the District and further provides that on receipt of such certificate the Collector shall proceed to recover the amount specified in the certificate as if it were an arrear of land revenue. It is pursuant to this provision that attachment was effected under the Travancore Cochin Revenue Recovery Act 1951 and after it was replaced by the Kerala Revenue Recovery Act 15 of 1968 properties were attempted to be put up for sale. Section 3 of the Kerala Revenue Recovery Act provides that the public revenue due on any land shall be the first charge on that land and the buildings upon it as also the produce thereof. The corresponding provision under the Travancore-Cochin Revenue Recovery Act is similar. The mode of attachment of immovable properties is provided in Section 34 of the Kerala Revenue Recovery Act and that is by service of a regular demand upon the defaulter specifying the particulars, such as the amount of arrears of public revenue due on land, the date on which the arrear fell due and other specified matters. Section 60 of the Act provides that-

'All immovable property brought to sale on account of arrears of public revenue due on land shall be sold free of all encumbrances; and if any balance shall remain after liquidating the arrearswith interest thereon and cost of process, it shall be paid over to the defaulter.'

Corresponding provision in the Travancore-Cochin Revenue Recovery Act is Section 44 which reads:

'All lands brought to sale on account of arrears of public revenue due thereon shall be sold free of all incumbrances and, if any balance shall remain after liquidating the arrears, interest and the expenses of attachment and sale and other costs due in respect of such arrears, it shall be paid over to the defaulter unless such payment be prohibited by the injunction of a Court of competent jurisdiction.'

Under the scheme of the Revenue Recovery Act a charge on land is contemplated for revenue due from such land No such charge is contemplated under Section 3 in respect of any other claims due to Government or even in respect of revenue due from other lands of the defaulter. There is no question of the sale being free of encumbrances except in' cases where the sale is on account of arrears of public revenue due on land. The State, by clearly providing in Section 3 of the Kerala Act for a charge on immovable property for public revenue due on such land has, by necessary implication, excluded the idea of charge in other cases. Further Section 60 of the Kerala Revenue Recovery Act provides that the sale shall be free of encumbrances when it is on account of public revenue due on land and this, by necessary implication, excludes any such concept of sale free of encumbrances in cases where the sale is not for recovery of public revenue due on land. Therefore, it may not be possible to accept the second contention advanced by the learned counsel Sri Govinda Warrier that the scheme of the Revenue Recovery Act indicates and provides for priority of the Crown debts. If any indication is to be read from the Act it is otherwise.

12. We will now consider the larger question whether , irrespective of any provision in the Revenue Recovery Act, the State and the Union Government will be justified in their claim that the excise dues to the State may have preference over payment of dues to other creditors and as such the claim by the plaintiffs based on the court sale under Ext. A6 must fail. This plea necessarily calls for considering the further question whether, even assuming that debt due tothe State has priority, such priority can be urged as against properties of the debtor after such property has been sold and has left the hands of the defaulter, To that question we will advert later.

13. The doctrine of Crown priority has a long history of development in England. The basic doctrine of Crown privileges evolved by the common law of England was noticed by the Indian Court on occasions. That the Common Law of England was not law in India admits of no doubt though the rules of the Common Law of England were administered as law in the Presidency town of Calcutta, Bombay and Madras. The mofussil courts invoked rules of common law on occasions seeking to apply them as rules of justice, equity and good conscience. When statutes were framed later some of the rules gained recognition therein. (Vide AIR 1967 SC 9971 Therefore, unless it is shown that in a particular State the Common Law of England was adopted outside the Presidency Towns, the rules of common law cannot be taken to have been the law in force on the date the Constitution came into force. If it was the law in force within the meaning of that term as envisaged in Article 372 of the Constitution, it would continue to be alive even after the Constitution. Whether it was a law in force directly arose for notice by the Supreme Court in Builders Supply Corpn. v. Union of India, (1965) 2 SCR 289: (AIR 1965 SC 1061). The Supreme Court observed:

'This doctrine as originally evolved by common law in England, had a very wide sweep and it purported to take within its scope many privileges and powers. Considered in the light of its wide sweep, some of these privileges may sound archaic and feudal, but it is not necessary for our purpose to examine the said doctrine in all its width; in the present appeal we are concerned with the narrow question as to whether respondent No. 1 is entitled to claim that the recovery of the amount of tax due to it from a citizen must take precedence and priority over unsecured debts due from the said citizen to his other private creditors.'

The Court again noticed in another part Of the judgment thus:

'At this stage, we ought to make it clear that in the present appeal we are dealing with a very narrow point, and that relates to respondent No. 1's claimthat arrears of tax due to it have precedence or priority over money debts due to a private creditor from the same debtor. We think it necessary to emphasise this aspect of the matter, because the basic doctrine of Crown privileges as originally evolved by common law in England may lead to different categories of claims made in different circumstances and by different States in India; and we want to make it clear that our present decision should be confined only to the narrow point with which we are directly concerned.'

The Supreme Court did not evidently intend to lay down the rule for the whole of India. The decision indicates the need for examination, in the event occasion arose, with reference to any particular State whether the common law doctrine of crown priority was in force in that State.

14. The question which is now before us is more or less similar to the question that came Up before the Supreme Court in Collector of Aurangabad v. Central Bank of India (AIR 1967 SC 1831). That was a case where the question for examination was whether the common law rule of priority of crown debts was in force in the native State of Hyderabad. We are concerned in this case with the law in force in that part of the territory of the State of Kerala which was the territory of Travancore-Cochin State on 26th January 1950, and the territory of the erstwhile Travancore State prior to the integration of the States of Travancore and Cochin. Whether the rule of priority of Crown debts was recognised in the State of Travancore may have to be considered in the light of the decision to which we have adverted. The Supreme Court was concerned in the case before it with the question of competing priorities between private debt and revenue dues to the State Government as sales tax dues. It was contended in that case that Section 13 (2) of the Hyderabad General Sales Tax Act made provision for recovery of sales tax due as arrears of land revenue and since priority for land revenue was provided under the Hyderabad Land Revenue Act, the arrears of sales tax also must be taken to have priority over other demands whether it be in respect of debts or mortgage or based on a decree or attachment of a Court. It was noticed that priority would be only for the collection of land revenue due from the respective landsand not other taxes, and only the procedure for recovery under the Revenue Recovery Act was adopted. That of course must be said in regard to the case here also. Referring to the common law doctrine of priority of Crown debt the Supreme Court in AIR 1967 SC 1831 noticed its earlier decision in Builders Supply Corporation case (AIR 1965 SC 1061). But the Court did not apply the English common law doctrine. The Court summed up its conclusion thus:

'We are, however, unable to apply the English common law doctrine of priority of Crown debts, in this case, because there is no proof that the doctrine was given judicial recognition in the territory of Hyderabad State prior to January 26, 1950 when the Constitution was brought Into force. We granted time to counsel for the appellants to ascertain whether there were any reported decisions recognising such a doctrine in the Hyderabad State, but sufficient material has not been placed before us in this case to show that the doctrine was given judicial recognition in the Hyderabad State before the incorporation into the Indian Republic.'

Evidently in the absence of any pronouncement of the courts recognising the Common Law doctrine as applicable to the particular State, the Supreme Court was not prepared to apply that doctrine to that State. In view of the observations in the Builders Supply Corporation case, to which we had already adverted restricting the decision to the facts of the case before the court and the decision in the Aurangabad Collector's case, to which we just now adverted, we think we are called upon to examine whether in the erstwhile State of Tra-vancore State the doctrine of Crown privileges in the matter of priority for Crown debts was recognised or adopted.

15. The earliest Revenue Recovery Act in the State of Travancore-Cochin was enacted in 1068 H. E. (1893 A. D.). That was the Act in force when the Constitution came into force on 26th January, 1950. The question whether the rule of the Common Law in England relating to the Crown privileges as a creditor was applicable to Travancore seems to have come up for discussion even prior to the enactment of the Revenue Recovery Act of 1068. When the Revenue Recovery Act was enacted there was no scope for recovery by enforcement of the revenue recovery process, of various categoriesof dues as are generally sought to be recovered in the present day under the Revenue Recovery Act. But the question whether the rule of Crown priority would apply so as to obliterate encumbrances on a property by reason of revenue sale even when the revenue sale is effected for recovery of public revenue due on land other than land proceeded against had arisen under the Travancore Revenue Recovery Act 1068. It is in that context that the Court had to consider the applicability of this doctrine.

16. The earliest case of the High Court of Travancore to which we may advert now is that rendered more than 90 years ago. A Full Bench of 5 Judges in the High Court in Kanakku Easwaran Narayanan v. Kannan Channen (4 Trav LR 81) considered the effect of the revenue sale held by the State for arrears of revenue due from the owners of thr property as against a court sale for a decree debt under a mortgage of 1051. The auction purchaser at the revenue sale contended that as against his sale the enforcement of the mortgage deed by sale would not be operative. The District Judge upheld the title of the plaintiff and gave him a decree on the ground that sale on a land for arrears of revenue due to the sircar was free of all encumbrances, revenue being the first charge upon the land. The question evidently was whether the revenue sale would be free of all encumbrances. There was the further question whether it would be so when the sale was for arrears due not only on the land which was sold, but on that land as well as other land in the holding of the defaulter as was the case there. It may be interesting to extract here the answers to these questions as stated by the Full Bench. The passage to which we advert here has been often cited by the Travancore High Court in the later decisions:

'Our answer to the first question is in the affirmative. Revenue being the first and paramount charge on the land, a sale for arrears of revenue is free of all prior encumbrances. Public interests require that all private demands must give priority to the revenue due to Government, for the obvious reason that no Government can be carried on without revenue. It may be that in the absence in this State, of a Regulation defining the procedure to be observed in realising arrears of revenue, encumbrancers may find it difficult to protect their interests bypaying the arrears. All we mean to decide is that, if a sale has been properly made after public notice, it is free of all encumbrances. We need hardly add that the object of public notice is to give an opportunity to the defaulter or those who claim through or under him, such as en-cumbrancers to. To pay arrears and thereby prevent the sale of land. It is for the Division Bench to decide whether the sale was properly made in this case.

Our answer to the 2nd question is that the prior encumbrances are not affected by the sale if the arrears was not due on the land sold. The first charge in favour of the Government revenue being in the nature of an encumbrance, the arrear due on one land cannot be treated as a charge on other lands in the holding of the defaulter.'

The decision in Kanakku Easwaran Nara-yanan's case was followed in (1934) 24 Trav LJ 1272 and (1935) 25 Trav LJ 396, In a later Full Bench of the Travancore High Court in (1938) 28 Trav LJ 226 a slight departure from the view taken in the earlier decision has been made, but that may not be relevant for the question before us. While earlier the High Court had taken the view that if sale is held for arrears due on the land sold as well as other land it would not be free of all encumbrances within the meaning of Section 39 of the Revenue Recovery Regulation, a different view was taken by the Pull Bench in (1938) 28 Trav LJ 226 on that question. We need not dwell on this question further for in a later decision Sircar v. P. C. Achuthan Pillai (1943 Trav LR 16), Sankarasubba lyer, J., has succinctly summed up the situation, in the following words:--

'The Common Law of England recognises what may be called the prerogative right of the Crown, in respect of claims. The rule is that when claims of the Crown and claims of persons concur or come into competition, the Crown is pre-rferred. This doctrine is one peculiar to the Common Law of England and as such there can be no justification for imputing it here, though British Indian High Courts have adopted the same with regard to Presidency Towns. Instances are Collector of Moradabad v. Muhammad Daim Khan ((1878-80) ILR 2 All 196) and Ragho Prasad v. Mewa Lal ((1912) ILR 34 All 223 at p. 233): (1912-9 All LJ 401), in Ramachandra v. Pitchaikanni ((1884) ILR 7 Mad 434) the Madras High Court hesitated to accept the doctrine as ap-plicable to places outside the Presidency Towns. Ancient Hindu Law seems to have recognised a priority in favour of the King. Yajnavalkya placitum 278 as translated in Golobrooke's Digest is as follows:

'A debtor shall be forced to pay his creditors in the order in which the debts were contracted, after first discharging those of a priest or of the King.' But it has not been possible to come across any decided cases where the above principle has been adopted. Hence, it is better that the question arising in this case be determined, independent of the right of prerogative of the Crown conceded to it under the Common Law of England, the question whether such a right can be held to exist in this country being left undecided.'

Counsel Sri Warrier was not able to bring to our notice any decision of the Travancore High Court in which the doctrine of Crown priority had been recognised or applied.

17. The foregoing discussion would be sufficient to find that there was no law in force in the territory of the erstwhile Travancore State on 26-1-1950 which would enable the State or the Union Government to claim that there should be priority for State dues over dues to other creditors,

18. Even in a case of preference ofone creditor over the other, such preference would operate only in the matter of discharge of the liability of one creditor is preference to the other. In other words where there are unsecured creditors) including the State, even assuming that the State has priority if the creditors other than the State had recovered their debts by sale of the debtor's property there would be no scope for reopening such sale merely because the State was also a creditor at the time of such sale. After the decree debt due to the decree-holder in O. S. No. 388 of 1964 was satisfied by execution and the rights in the property have been conveyed to the auction-purchaser, the Union Government as a creditor cannot seek to reopen the sale even assuming that in the matter of payment it would have been entitled to preference,

19. Before we close we will notice the decisions of our own court which may have bearing on the question before us. In this context we may notice the observation of P. T. Raman Nayar, J. (as he then was) referring to Section 26 of theTravancore-Cochin Revenue Recovery Act in Chandrasekharam Fillai v. The Popular Bank Ltd., (ILR (1968) 1 Ker 861):--

'All that is done by Section 26 is to give notice that, unless the arrear be paid within the date mentioned, the land will be brought to sale for recovery of the arrear. It would thus appear that an attachment under the Revenue Recovery Act no more creates a charge or other interest in the land than an attachment under the provision of the Civil Procedure Code.'

The amount due under the certificate being not public revenue, by attachment of land, benefit of Section 3 of the Travancore-Cochin Revenue Recovery Act which says that the land shall be security for the public revenue due on it would not be available. Section 44 corresponding to Section 60 of the Kerala Revenue Recovery Act would also not be available since the sale is not ior arrears for public revenue due on that land. The view expressed by Raman Nair, J. is in accord with the view that we have expressed here. Our attention has been drawn to the decision of the High Court of Kerala in State of Kerala v. E. P. Mathew (AIR 1961 Ker 18) in support of the stand of the learned counsel for the appellant that the doctrine of priority of crown debts was recognised in the State of Kerala in judicial decisions. No doubt, the Division Bench in that case has noticed the doctrine as one of necessity and good conscience and has further noticed that the prerogative should be considered as an essential attribute of the State and as part of general jurisprudence it should be enforced. We must notice that this decision was rendered before the decision of the Supreme Court in Builders Supply Corporation case (AIR 1965 SC 1061) and the later Au-rangabad Collector's case (AIR 1967 SC 1831) to which we have adverted. It was not as if the Division Bench was recognising any earlier rule in force in the Travancore State. The court was only discussing the doctrine debors any principle recognised in the Travancore State. In view of the statement of the law in the subsequent decision of Supreme Court in AIR 1967 SC 1831 with great respect to the learned Judges of the Division Bench, we do not see our way to follow the said decision. The view expressed by Vadakkel J., in Nedungadi Bank Ltd. v. Tahsildar, Otta-palam (1977 Ker LT 826): (1978 Tax LR NGC 13) is also in accord with the view that we have expressed here. The learned Judge held in that case that it could be said that a mortgagee of immovable properties cannot be defeated by the State seeking to attach and sell the mortgaged properties to the detriment of the mortgagee. No doubt, on the facts of that case it could have been decided even without deciding the question since the learned Judge found there that the debt due to the State was a trade debt and not a revenue debt

20. Hence, we have to hold that neither under the scheme of the Revenue Recovery Act nor under any general rule of applicability of the doctrine of priority for Crown debts could the appellant succeed in this case even in regard to the 1/6th share of Janaki Amma The decision of the court below must, therefore, be upheld. The appeal is dismissed with costs,


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