Skip to content


R.K. Raghavan (R.K. Selvaraj) Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberL.P. Appeal No. 77 of 1980 and Application Nos. 3832 and 3833 of 1978 and 952 of 1979
Judge
Reported in[1983]140ITR894(Mad)
ActsIncome Tax Act, 1961 - Sections 156, 178 and 281 - Schedule - Rules 2, 11, 16 and 51
AppellantR.K. Raghavan (R.K. Selvaraj);union of India;union of India;south Indian Bank Ltd.
RespondentUnion of India and anr.;south Indian Bank Ltd. and ors.;t.D. Murthy and Co. and ors.;union of Indi
Appellant AdvocateV.K.T. Chari, Adv.
Respondent AdvocateK. Parasaran (Solicitor General)
Cases Referred and Mahalakshmi v. P. S. Rajeswari
Excerpt:
direct taxation - mortgage - sections 156, 178 and 281 and rules 2, 11, 16 and 51 of schedule to income tax act, 1961 - mortgage in present case executed at time when act of 1961 had not extended to state - as per lower court there was no material to hold that there was no mortgage - lower court not justified in directing appellant to apply rule 11 and establish validity of claim as secured creditor on basis of mortgage - cannot be suggested that mortgage had been created to defraud revenue - decree of lower court set aside and order of sale made by trial court restored. - - however, this section does not confer on the government any high priority than that enjoyed under the company law. act, 1961. the ito has the power to issue a certificate to the tro specifying the amount of.....sathiadev, j.1. the appeal is preferred against the order made by first additional sub-judge, pondicherry, in e.a. no. 5 of 1977 in e.p. no. 217 of 1974 on a petition filed under o. 21, r. 90 and s. 151 of the cpc to set aside the sale held on december 16, 1976, on the ground of material irregularity. 2. the appellants herein is union of india represented by the ito, pondicherry, who was the petitioner in the court below and the two respondents herein were the respondents therein. in the petition it was claimed that one madam garnier was doing business in automobiles and she died in september, 1967, bequeathing her property to the second respondent and three others. she was in arrears of income-tax amounting to rs. 10,00,000, and the only immovable property left behind is door no. 4, st......
Judgment:

Sathiadev, J.

1. The appeal is preferred against the order made by First Additional Sub-Judge, Pondicherry, in E.A. No. 5 of 1977 in E.P. No. 217 of 1974 on a petition filed under O. 21, r. 90 and s. 151 of the CPC to set aside the sale held on December 16, 1976, on the ground of material irregularity.

2. The appellants herein is Union of India represented by the ITO, Pondicherry, who was the petitioner in the court below and the two respondents herein were the respondents therein. In the petition it was claimed that one Madam Garnier was doing business in automobiles and she died in September, 1967, bequeathing her property to the second respondent and three others. She was in arrears of income-tax amounting to Rs. 10,00,000, and the only immovable property left behind is Door No. 4, St. Lawrence Street, Pondicherry. When the Department took steps to bring the property to sale, it filed O.P. No. 21 of 1975 in the same court against the second respondent and three others, who are legal representatives of deceased Madam Garnier, for permission to bring the property to sale and the court declared that the State had the first charge over the property, and permitted it to bring the property to sale, and this petition was ordered on October 24, 1975. While so, the first respondent herein had filed on July 1, 1974, E.P. No. 217 of 1974, claiming that he was the mortgagee under mortgage dated December 22, 1960, and, hence, he has a right to bring the property to sale. The executing court, after granting permission to the first respondent to bid, auctioned the property on December 16, 1976, in which the decree-holder/first respondent himself purchased the property for Rs. 44,100 whereas the property is worth much more. Inspite of the legal representative of the income-tax defaulter having been served with notices and put on notice about the claim for arrears of income-tax, the proceedings taken in execution by the first respondent, being contrary to the provisions of the I.T. Act, 1961, the sale conducted, would seriously affect the rights of the petitioner, and, therefore, it deserve to be set aside.

3. Second respondent remained absent and it was it first respondent who contended that under the mortgage dated December 22, 1960, a sum of Rs. 20,000 was payable by Madam Garnier, and that under the French law, and as held in Smt. Susama Bala Sur v. Bibhuti Bhusan Mondal, : AIR1973Cal295 , the mortgage deed itself was a decree, and it having the force of a decree, he had the right to directly file E.P. No. 217 of 1974, and therefore, the court auction sale was held after due publication, and hence the petitioner had no right to challenge the sale not to claim preference over claim of a secured creditor, and more particularly when the I.T. Act had come into force only in 1961, whereas the mortgage was created as early as December 22, 1960. The court below placing reliance on Suraj Prasad Gupta v. Chartered. Bank : [1972]83ITR494(All) , has come to the conclusion that the first respondent being the mortgagee and a secured creditor was entitled to a priority over the tax amount that may be claimed by the petitioner, and the decree obtained not being a 'decree for the payment of money', the court auction sale need not be set aside. It also took note of the fact that long before Madam Garnier became an income-tax assessee under the provisions of the I.T. Act, 1961, the first respondent having secured a mortgage, which in law was a mortgage decree, ranked as a secured creditor, and there being no irregularities made out in the auction sale, the sale held on December 16, 1976, deserved to be confirmed, and hence directed a sale certificate to be issued. Aggrieved with this order, this appeal is preferred by the petitioner, Union of India, represented by the Tax Officer, Pondicherry. Subsequent to the order, sale certificate was issued on September 5, 1977, and this appeal was filed on November 15, 1977.

4. Mr. Rangaswamy, counsel for the appellants, contends that merely because there was a mortgage in favour of the first respondent on December 22, 1960, it does not mean that after a service of notice on Madam Garnier and thereafter on her legal representatives demanding arrears of tax, the executing court cannot proceed with the execution of the mortgage decree by virtue of the prescription in r. 16(1) of Sch. II to the Act. A mortgage decree is in essence only a money decree, and the rule as framed brings within its fold an execution taken pursuant to a mortgage decree to realise the amount in satisfaction of the mortgage claim. Even though the I.T. Act was made applicable to the territory of Pondicherry only in 1964 and the huge tax amount payable by her had accrued due subsequently, after notice had been served on the defaulters on a certificate issued under s. 222 of the I.T. Act, the civil court is deprived of its jurisdiction to proceed in execution of a decree in which the defaulter is involved. When O.P. No. 21 of 1975 was allowed on October 24, 1975, the second respondent and the other three legal representatives being fully aware of the demand made on them for recovery of income-tax, the property belonging to them, cannot be subject to any execution proceedings, and, therefore, petitioner/appellants herein has the jurisdiction to maintain an application under s. 151 and under O. 21, r. 90 of the CPC, and seek the necessary relief. The petition was filed in January, 1977, and, therefore, even though auction might have been held on December 16, 1976, the execution court has no jurisdiction to confirm the sale. Rather he would contend that when a notice is issued under rule 2 of Sch. II, under r. 51, it dates back and becomes effective from the date of service, and thereafter whatever be the order of an executing court, they will be only invalid.

5. Mr. Masilamani, counsel for the respondent, contends that nowhere in the I.T. Act there is any provision made that the tax demanded from a defaulter will supersede the claim of a mortgagee and the priority to which a secured creditor is entitled, cannot be destroyed by relying upon rules found in Sch. II to the Act. Mortgage under the French law does not contemplate the filing of a suit for a mortgage decree to be obtained, and even on the day when the mortgage deed was executed, it becomes an executable decree, and what was further required to be done by the mortgagee was to file an execution petition and at that stage, the I.T. Dept. cannot interdict the process taken by the executing court. The contention that a mortgage decree is a money decree is a negation of the established concept, that a mortgage decree is in essence a right to proceed against security and as a secured creditor the right of the mortgagee ranks higher than the claim of the State for recovery of taxes.

6. Mr. Masilamani in support of his contention refers to s. 48 of the Transfer of Property Act, wherein it is provided that the rights of persons acquired earlier cannot be superseded will be subject to the rights previously created. It is not disputable, according to him, that on December 22, 1960, a mortgage was created in favour of the first respondent by Madam Garnier for Rs. 20,000. It is now alleged that the amount due to the first respondent is Rs. 1,20,000. To substantiate his contention that the State can have no precedence over the claim of a secured creditor he refers to the passage in Mulla's T.P. Act, Vth Edn., at p. 230, which is as follows:

'(5) Government debt. -Apart from statutory provisions to the contrary, a debt owed to the Government or any local authority is no exception to the rule of priority and is not entitled to precedence over a prior secured debt. It is only with regard to payment of unsecured debts that such debts have priority.'

7. Therefore, he claims that it is only as against unsecured creditor, the claim of the Crown-State can have precedence, but when the claim is of a secured creditor, a claim for recovery of tax cannot have any precedence. To show that even in the I.T. Act this concept has been recognised, he resorts to s. 178 which deals with a company in liquidation and the proviso to sub-clause (3) is to the effect that nothing in the said sub-section shall debar the liquidator 'for making any payment to secured creditors whose debts are entitled under law to priority of payment over-debts due to Government on the date of liquidation'. Equally, he relies upon the following passage at p. 870 of the VI Edn. (Vol. 1) of Kanga's Law and Practice on the Income Tax, which is to the following effect:

'Until the liquidator has set aside an amount to meet the tax liability, he should not part with any of the assets except for paying secured creditors entitled to priority over Government dues. However, this section does not confer on the Government any high priority than that enjoyed under the company law.'

8. To show that the right to claim tax is subject to the rights of a secured creditor. Merely because rules have since been made under the I.T. Act, 1961, in Sch. II, of the procedure that will have to be followed for recovery of tax by the TRO, they cannot override established law or even what is found in the Act itself.

9. He refers to the decision rendered in Builders Supply Corporation v. Union of India : [1965]56ITR91(SC) , which dealt with the scope of s. 46(2) of the Indian I.T. Act, 1922, wherein it was held that (headnote): 'The Government of India is entitled to claim priority for arrears of income-tax due to it from a citizen over debts from him to unsecured creditors', and that s. 46 does not in terms displace the application of the doctrine of tax dues. The Supreme Court, in the said decision, referred to the Full Bench decision of this court in Manickam Chettiar v. ITO : [1938]6ITR180(Mad) , wherein it was held that s. 46 of the Indian I.T. Act, 1922, is not exhaustive of the remedies of the Crown, and it does not preclude an application being filed under s. 151 of the CPC by the Department for recovery of tax arrears in a matter that was pending before the court. It was, therefore, held that as against claims of unsecured creditor, the State will be entitled to priority for recovery of arrears of tax which, according to Mr. Masilamani, would necessarily mean that the priority claim of the secured creditor has thus been recognised.

10. He then relies upon a Full Bench decision of this court relating to the scope of s. 46(2) of the Indian I.T. Act, 1922, wherein, in a case arising under a mortgage, it was held that when a receiver is appointed, the amounts recovered by him, till appropriated by orders of court towards the mortgage debt, it is only a fund in court in medio, and the court has the power to give directions about the disbursement of the collections made by the receiver pending the suit and hence the State has a right to move the court for collection of the arrears of tax due and payable by the mortgagor. Relying upon the reasoning adopted therein, he contends that the right of the mortgagee is preserved over the security against the claim of the State for recovery of arrears of tax payable by the mortgagor. He they lays considerable reliance on the decision is Suraj Prasad Gupta v. Chartered Bank : [1972]83ITR494(All) of the Allahabad High Court wherein it has been held that a bar on a civil court issuing process against assessee's property, does not apply to a decree for sale of mortgaged property. It was held therein that there being no substantive provision in the I.T. Act for superseding or overriding the claims of a secured creditor, and Sch. II being confined only to procedure, the expression 'decree for the payment of money' in r. 16 (1) has to be given only a restricted meaning, confining it to a simple money decree, and it cannot include a decree for sale in enforcement of a mortgage decree passed under O. 34, r. 5 of the CPC. In this decision, neither the Full Bench decision of this court in Manickam Chettiar's case : [1938]6ITR180(Mad) , nor any other decision, is referred to.

11. Regarding the claim of priority by the I.T. Dept. for realisation of arrears of amount, a Division Bench of this court in Somasundaram Mills Private Ltd. v. Union of India : [1969]74ITR668(Mad) , in a case that arose under the Indian I.T. Act, 1922, held that the priority can be claimed only when the assets are in the possession of the executing court and that it should being to the judgment-debtor. But, if the property had become the property of the decree-holder, the claim of priority cannot be enforced. According to Mr. Masilamani, even when mortgage was executed on December 22, 1960, there was a mortgage decree in his favour, and for this purpose he relies upon the decision in Smt. Susama Bala Sur v. Bibhuti Bhusan Mondal, : AIR1973Cal295 , wherein a Full Bench of the court held that grosses copy of a notarial mortgage bond executed under this French law has the force of a decree. In a recent decision of this court reported in Mahalakshmi v. P. S. Rajeswari : (1979)2MLJ192 , it has been held that when a mortgage was created, at a time when the French law was in force, it straightaway became an executable decree and such a substantive right can be enforce by moving the executing court for a recovery of the amounts.

12. Hence, the contention of Mr. Masilamani is that, the first respondent as mortgage/decree-holder/court-auction-purchaser, has a priority claim over tax arrears of the judgment debtor and her legal representative, and, therefore, the execution proceedings taken in E.P. No. 217 of 1974 culminating in a sale certificate being issued cannot be challenged in these proceedings, even though it may be claimed that under the I.T. Act of 1961, which had come into force in Pondicherry territory only in 1964, notices have been served under r. 2 on the defaulting assessee-mortgagor, even prior to the first respondent filing the E.P. on July 1, 1974.

13. Mr. Rangaswamy, counsel for the appellants, contends that the reliance placed on decisions rendered under s. 46(2) of the Indian I.T. Act, 1922, can have no application subsequent to what has been provided under s. 222 of the I.T. Act, 1961. The ITO has the power to issue a certificate to the TRO specifying the amount of arrears of tax due from the assessee and, thereafter, the TRO has the power to adopt any one or more modes mentioned therein like attachment and sale of assessee's movable or immovable properties, arrest the assessee and detain him in prison or of appointing a receiver to manage the properties of the assessee. The TRO has the power to issue a notice under r. 2 of Sch. II, and on service being effected, it will be deemed to be effective from the date of service on the defaulting assessee, as provided under r. 51, and, therefore, in this case after a notice had been served, the civil court has no jurisdiction to proceed with the execution proceeding initiated in E.P. No. 217 of 1974, which was filed only on July 1, 1974. When the present petition was filed both under O. 21, r. 90 and s. 151, CPC, in January, 1977, there is no jurisdiction in the executing court to confirm the sale. Thereafter, it is only for the TRO to bring the property to sale, in which it will be open to the first respondent herein to seek his reliefs, as provided under the Rules. On the claim that when a decree is obtained under a mortgage, the decree-holder is a secured creditor and, therefore, the arrears of tax cannot be claimed by invoking r. 16(1) of Sch. II is basically incorrect, because a Full Bench of this court has held that mortgage decree is a money decree.

14. It will be useful first to take up the point as to what is centemplated under r. 16(1) of Sch. II to the Act, which is as follows:

'Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, not shall any civil court issue any process against such property in execution of a decree for the payment of money.'

15. Mr. Masilamani claims that the words 'for the payment of money' can be referable only to a simple money decree and a mortgage decree is outside its scope. Mr. Rangaswamy, counsel for the appellant, contends that even a mortgage decree will come within the expression above referred to, because essentially a mortgage decree is for recovery of money, and to realise the amount borrowed on furnishing security, the mortgage is enable to bring the same security to sale in court auction, and, ultimately, what he realises is the amount due under the mortgage. In this view, even in the case of a mortgage decree it will be only 'a decree for payment of money' and to substantiate this contention he relies upon the following four decisions: in Hart v. Tara Prasanna Mukherji, ILR 11 Cal 718, in dealing with a mortgage decree, when the State came for rateable distribution of sale proceeds under s. 295 of the CPC, 1882, it was held that when a mortgagee seeks to realise the amount from the mortgaged property and from the mortgagor personally, it is 'a decree for money' within the meaning of the term used in s. 295. A Full Bench of this court dealing with ss. 230, 258 and 295 of the CPC, 1882, held that 'a mortgage decree even when the remedy otherwise does not exist or has become barred by limitation, would be a money decree within the meaning of s. 230 and, therefore, of ss. 258 and 295 also of the CPC, 1882'. The contention was that a mortgage decree under s. 88 of the Transfer of Property Act cannot be termed as a money decree. But this claim was repelled on the ground that so far as the realisation of the debt from the mortgaged property goes, the process undergone is to realise the money through court and hence it is a money decree. In Krishnan (Minor) by next friend, Pathma Parvathi Ammal v. Venkatapathy Chetty, ILR 29 Mad 318, a Division Bench following the said Full Bench decision, held that a decree directing recovery of the decree amount by sale of properties but not directing payment by the defendant is essentially a decree for money. Relying upon these binding decisions wherein it was held that a mortgage decree is essentially a decree for the payment of money, quite rightly Mr. Rangaswamy contends that the decision rendered in Suraj Prasad Gupta v. Chartered Bank : [1972]83ITR494(All) , wherein no precedents have been referred to, cannot be of any assistance in understanding the scope of r. 16(1).

16. What is contemplated under r. 16(1) is to desist the civil court from issuing any process against a property belonging to a defaulter on whom a notice has been issued under r. 2 being further proceeded with in execution of a 'decree for payment of money'. This rule cannot be invoked in cases where the relief is for a partition, or possession, or for a mandatory injunction to be carried out or for specific performance of a contract or in a suit for redemption and the like. Even in a mortgage claim, the decree is put into execution to bring the security to sale for the realisation of money due and payable to the mortgage. It would, therefore, be not inappropriate to hold that even in the case of mortgage decree, r. 16(1) of Sch. II can invoked. What is sought to be recovered in the execution proceeding is the money payable by the defaulter, on whom a notice had been already served under r. 2 of the Rules. In this case in fact, O.P. No. 21 of 1975 had been filed by the petitioner, Department, and an order had been passed on October 24, 1975, in favour of the petitioner and it is only thereafter the court auction had taken place on December 16, 1976, though the execution petition was filed on July 1, 1974. Further, much earlier, notices for the recovery of arrears had been served on the defaulter and her legal representatives.

17. Mr. Masilamani has contended for the first respondent, that the execution of the decree had come to the stage of confirmation, and in fact subsequent to the filling of the present petition, a sale certificate had been issued and, therefore, no relief can be secured in the present petition. What had transpired subsequent to January, 1977, i.e., after the filing of the present petition is irrelevant and cannot stand in the way of the petitioner, if it can be established by the petitioner that subsequent to the service of notice under r. 2 of the Rules, the executing court has no jurisdiction to further proceed with the matter.

18. Counsel for the Department relies upon the decision in N. B. Films v. Daya Shankar : [1975]98ITR676(Delhi) , wherein it was held that no process could be issued by the executing court pursuant to the decree against any property of the judgment debtor who had been served with a notice under r. 2, because of the bare imposed under r. 16(1). It was held therein (at p. 680):

'The English doctrine of precedence of Crown debts over private debts applied to India so that, in the absence of any provision in any statute to the contrary, all revenue recoveries or State debts would get the precedence over the private debts and the only exception to this rule is to be found in the case of a secured creditor who has the prior right to recover the debt by proceeding against such property. In this view of the matter, once a notice of demand is issued and has the effect of restraining the defaulter to deal with the property, any further process in respect of such property from any executing court would lead to conflict of jurisdictions and unnecessary multiplicity of proceedings'.

19. In Sriniwas Pandit v. S. Jagjeet Singh Sawhney : [1976]104ITR20(Delhi) , it is held that the effect or r. 16 of Sch. II is that as soon as it was brought to the notice of the court that a notice had been issued by the TRO it become it duty of the court to desist from any further process for realising the money sought to be realised in execution of a decree for the payment of money. To the same effect are the two decisions rendered by this court in Tax Recovery Officer v. V. A. Ramaswamy : [1978]114ITR408(Mad) and Union of India v. S. Ganesh Lal Bajaj : [1978]115ITR791(Mad) . In earlier decision, execution proceedings had come to the stage of issue of cheque. But when the TRO moved for relief, it was held that the sale already confirmed has to be set aside because the proceedings that have followed subsequent to the service of notice under r. 2, are not valid.

20. Though it is contended that what are provided under Sch. II are only procedural in natural and there is no provision made in Act for moving the civil court, it will be seen that s. 226 (4) authorises the ITO to apply to the court in whose custody there is money belonging to the assessee for payment to the Department of the entire amount of such money, or, if it is more than the tax due, an amount sufficient to discharge the tax. Hence, when the Act had authorised the Department to move the civil court for collection of arrears of tax which is in court and payable by the defaulting assessee, and for recovering the amount, Rules had been made under Schedule II, the point taken that the proceedings are taken only under the Rules and not under main provision of the Act, necessarily fails.

21. One other aspect that requires to be considered before a conclusion can be drawn is regarding the scope of r. 16(1). In the latter part it is provided: 'nor shall any civil court issue any process against such property', and, what is meant by 'process', would also be relevant. The meaning of the word 'process' is stated in Stroud's Dictionary, Vol. III, 3rd Edn., p. 2315, as follows:

''Process' is the doing of something in a proceeding in a civil or criminal court and that which may be done without the aid of a court is not a 'process'.'

22. At p. 2316, it is stated:

'All the steps taken in an execution-the seizure and the sale-are, in the natural meaning of the word, comprehended in the term 'process'.'

23. In Jowitt's Dictionary of English Law, 1959 Edn., at p. 1417, it is stated: 'Process-the proceedings in any action or prosecution, real or personal, civil or criminal from the beginning to the end.'

24. Therefore, when there is an interdiction against a civil court from issuing any process in execution of the decree, it means that whatever be the stage of the proceeding, till full satisfaction is recorded, the TRO can move the executing court and thereafter it will be for the TRO to take the necessary steps, as provided under the Act. Whether he moved the court at the earliest stage or when the auction was to be conducted or even at the stage of confirmation as pointed out in TRO v. V. A. Ramaswamy : [1978]114ITR408(Mad) , even at the stage when the cheque is to be issued, the executing court can be called upon to stop further proceedings, and the sale held can be set aside. Therefore, the fact that the first respondent has secured a mortgage decree under the French law, which was in force at that time, would make no difference, when he moved the civil court for executing the decree by filing on July 1, 1974, E.P. No. 217 of 1974, and brings the property to sale for realisation of the payment of money. The TRO can then move the executing court to stay its 'hands, because, a mortgage decree having been held to be a money decree' by a Full Bench of this court, the expression used in r. 16(1) 'in execution of a decree for the payment of money' will bring within its fold such a mortgage decree also.

25. As to what is to follow thereafter, I will presently deal with. Under Sch. II, provision has been made enabling the TRO to bring the property to sale, and he is authorised to investigate the claims of persons in respect of the property for which a certificate has been issued. In the event of the TRO refusing to accept any claim or objection preferred under r. 11(6), it is open to the aggrieved party to file a suit, and subject to the result of the suit the order of the TRO shall be conclusive.

26. Hence, even a mortgage-decree-holder whose execution proceedings in civil court had been interdicted by the TRO, can made a claim before him to substantiate his right to priority adjustment of his claim before any amount could be adjusted towards realisation of arrears of tax. When such a remedy or recourse is available to a mortgagee-decree-holder to canvass his priority claim on the ground that he is a secured creditor, which will have to be necessarily considered by the TRO under r. 11(6), there could be no prejudice caused by the civil court being interdicted by virtue of r. 16(1) from proceeding with the execution proceedings initiated by the mortgage and the property being sold by the I.T. Dept. in a case where the property of a tax defaulter on whom a notice under r. 2 had been served, and whose property is brought to sale to realise the arrears of tax.

27. Regarding the existence of the mortgage and the amount actually due, there is an area of dispute between the parties. But presently in this proceeding, it cannot be decided otherwise, there being no material to hold that there was no mortgage created on December 22, 1960, for a recovery of the amount mentioned therein. Even on the aspect as to whether the present application is maintainable, there can be no doubt about its maintainability, in view of the Full Bench decision of this court in Manickam Chettiar v. ITO : [1938]6ITR180(Mad) , arising under Indian I.T. Act, 1922, in which it was held that when 'the Crown goes to the court and says 'here is a debt which is due to me about which there can be no dispute'. I consider that under these circumstances, the court can rightly invoke its power under s. 151, CPC, in making the payment to the person entitled to it'. This is precisely the view that was taken in Sriniwas Pandit v. Jagjeet Singh Sawhney : [1976]104ITR20(Delhi) , wherein also a petition was filed under s. 151 of the CPC and it was held that no such a petition, relief can be granted relying upon the said Full Bench decision and also the decision of the Supreme Court in Builders Supply Corporation v. Union of India : [1965]56ITR91(SC) .

28. For the foregoing reasons I hold that:

(1) the mortgage dated December 22, 1960, is a decree which can put into execution straightaway without any need for filing a suit to enforce it in view of the decisions rendered in Smt. Susama Bala Sur v. Bibhuti Mondal, : AIR1973Cal295 and Mahalakshmi v. P. S. Rajeswari : (1979)2MLJ192 . In the event of the petitioner seeking to establish that there was no mortgage at all, it may in appropriate proceedings do so and for the purpose of the present proceedings, the claim of the first respondent such a mortgage is not rebutted by any acceptable evidence.

(2) Hence, E.P. No. 217 of 1974, filed by the first respondent on July 1, 1974, was an execution proceeding instituted by the first respondent to enforce his mortgage decree.

(3) Even though there was a court auction on December 16, 1976, it is not a valid one because, much earlier to it, mortgagor-defaulter-assessee and the legal representatives had been served with notices of demand of arrears of tax, and having participated in the proceedings in O.P. No. 21 of 1975, knowledge being attributable, of the execution of the decree for payment of money, will not be binding on the I.T. Dept.

(4) Execution taken for realisation of mortgage claim is a 'decree for money' and hence in this case it will come within the ambit of r. 16(1) and, therefore, the civil court cannot issue any process for realisation of the decree amount after the petition had been filed by the petitioner.

(5) First respondent is no doubt a secured creditor, but still his claim based on a mortgage, is 'a decree for money', within the meaning of r. 16(1).

(6) It is open to the first respondent to file his claim before the TRO under r. 11(6) when he brings the property to sale, claiming that he is a secured creditor and out of the realisation, before the amounts are appropriated towards arrears of tax, he should be paid first, and such a claim will have to be decided by the TRO.

(7) The court auction held on December 16, 1976, is, therefore, an invalid one since whatever execution proceedings had been taken subsequent to service of r. 2 notice, is invalid.

(8) First respondent having a legal right to make his claim before the TRO under r. 11(6) of Sch. II, it is for him to establish that he being a secured creditor, under law, he is entitled to priority over tax arrears recoverable by the State, failing which he may institute a suit to sustain his claim.

29. Since the present application is taken out for setting aside the sale held on December 16, 1976, on the ground that the civil court cannot further issue any process in execution of the decree involved in E.P. No. 217 of 1974, now that I have held that the mortgage decree relied upon by the first respondent is one 'for the payment of money', the aspect whether the first respondent will be entitled to priority of claim as a secured creditor over and above the claims of the I.T. Dept. is an aspect which would necessarily be considered by the TRO, after the TRO beings the property to sale, and before whom the first respondent will have the right to file his claim statement on this aspect. Hence, this appeal is allowed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //