A. Alagiriswami, J.
1. The Union of India and the Collector of Salem, who were the defendants in the suit, are the appellants. The plaintiff-firm sold a bus MDC 4461 to one Peer Khan Sahib under a hire purchase agreement. This Peer Khan. Sahib was in arrears of income-tax and in pursuance of a certificate for recovery of arrears of income-tax due by him issued under Section 46 of the Indian Income-tax Act, 1922, the Collector of Salem attached the bus, and put it up for sale. The plaintiff put in a claim for the amount due to him under the hire purchase agreement. He seems to have been asked to produce a number of documents in support of his claim. But in spite of all that he did, nothing was heard about his claim and ultimately the bus was sold. The plaintiff thereafter claimed the amount due to him, but that was not paid. He then filed the suit out of which this second appeal arises, claiming that the bus was sold on an understanding between him and the Collector that it was to be sold free of his rights under the hire purchase agreement and he was to be paid the amount due to him. This was disputed by the defendants and the trial Court upheld their contention. The lower appellate Court, however, on the basis of a note found in the relevant file of the Collectorate which was marked as Exhibit B-7 in which the following sentence was found:
There are sufficient records to prove that the bus in question has been purchased on hire purchase agreement and Sri Peer Khan has paid so far as Rs. 2,150 out of Rs. 4,000 and there is still a balance of Rs. 1,850. The petitioner may be informed that a sum of Rs. 1,850 is yet due to him from Sri Peer Khan and it will be paid to him from out of the sale proceeds.
held that there was such an agreement and allowed the appeal and decreed the suit. Another reason given by the lower appellate Court was that whatever may be said about other things, it was clear that Peer Khan Sahib had no right, title, or interest in the vehicle on the date of attachment and therefore, the second defendant (that is, the Collector of Salem) had no right to sell the property belonging to the plaintiff-owner and the sale is not valid and binding on the plaintiff, that, in such circumstances, the sale is without jurisdiction and does not take away the rights of the owner in the vehicle, that the plaintiff is not a defaulter under the Revenue Recovery Act and that he is entitled to the sale proceeds which has been taken away by the second defendant. This, in effect, amounts to the application of Section 17 of the Revenue Recovery Act to the facts of this case.
2. The first objection on behalf of the appellants is that the lower appellate Court proceeds as though Peer Khan had no interest at all in the bus. There is no doubt that the plaintiff was the owner of the vehicle and Peer Khan Sahib was only a hirer. There is also no doubt that as a party to the hire purchase agreement, Peer Khan Sahib had certain rights in the property. The property itself has been sold for Rs. 2,502 and therefore, even if the plaintiff succeeds in getting a decree for Rs. 1,850 the defendants would retain a sum of Rs. 652. This is the extent of Peer Khan Sahib's interest. Supposing for instance this bus had been sold for Rs. 10,000 the defendants would be entitled to retain the balance after deducting Rs. 1,850 due to the plaintiff. Thus, the decree of the lower appellate Court does give effect to the right which Peer Khan Sahib had in the vehicle.
3. The next objection on their behalf is that the claim petition preferred by the plaintiff before the Collector, has not yet been disposed of and, therefore, he has to wait till the claim petition is disposed of and, if he fails in his petition, he has to file a suit as contemplated under Order 21, Rule 63, Civil Procedure Code. The plaintiff preferred the claim petition before the Collector as early as 1959 and for the appellants to plead now in 1968 that the claim petition has not yet been disposed of and the plaintiff cannot make a claim before it is disposed of, is, to say the least, hardly fair. The only way in which the Collector could be compelled to dispose of the claim petition is perhaps by the plaintiff filing a writ of mandamus to direct the Collector to dispose of the claim petition filed by him. I do not think that, in the circumstances of this case, that is necessary at all. For the above argument, reliance is placed on behalf of the appellants on the decision in C. Dhanalakshmi Ammal v. Income-tax Officer : AIR1953Mad376 . That was a case where under similar circumstances a writ petition under Article 226 of the Constitution of India was filed and the objection taken to the issue of a writ was that proceedings by way of claim petition and subsequently a suit under Order, 21, Rule 63, Civil Procedure Code, were open to an aggrieved party and, therefore, a writ should not issue. That objection was overruled by a Bench of this Court. The Bench in that connection pointed out that it was possible for an aggrieved party to file a suit under Order 21, Rule 63, Civil Procedure Code, but that it did not bar the issue of a writ. But it must be noticed that that decision was rendered when the proviso to Section 46 (2) of the Indian Income-tax Act, 1922, inserted by the Act XVIII of 1933 was in force. That proviso is as follows:
Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount, have the powers which under the Civil Procedure Code, 1908, a civil Court has for the purpose of the recovery of an amount due under a decree.
4. Before this proviso was added to Section 46 (2) of the Act, it simply ran as follows:
The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assesses, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue.
5. The effect of the proviso added in 1933 was explained by the Supreme Court in Purushottam Govindji Halai v. Additional Collector of Bombay : 1956CriLJ129 as follows:
On a proper reading, that sub-section does not prescribe two alternative modes of procedure at all. All that the sub-section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a civil Court has under the Code. The sub-section does not prescribe two separate procedures. In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of Sub-section (2) of Section 46.
6. In the light of the scope of Section 46 (2) explained by the Supreme Court, the decision in Dhanalakshmi Ammal v. Income-tax Officer : AIR1957Mad376 , naturally proceeded to point out that the remedy open to a person, whose property was attached under the provisions of Section 46 (2) of the Indian Income-tax Act, was to file a petition under Order 21, Rule 58, Civil Procedure Code, and if he fails therein, to file a suit under Order 21, Rule 63, Civil Procedure Code. But subsequently perhaps, in order to get over the effect of the judgment of the Supreme Court in Purushottam Govindji Halai v. Additional Collector of Bombay : 1956CriLJ129 , the old proviso to Section 46 (2) has been substituted by the following proviso:
Provided that without prejudice to the powers conferred by this sub section the Collector shall, for the purpose of recovering the amount specified in the certificate, have also all the powers which:
(a) a Collector has under the Revenue Recovery Act, 1890 ;
(b) a civil Court has under the Code of Civil Procedure, 1908, for the purpose of the recovery of an amount due under a decree.
7. It would be seen from the above that the Collector is to recover the amount, as if it were an arrear of land revenue which had accrued in his own district. The Collector of Salem in this case, had therefore, to exercise his powers under the Madras Revenue Recovery Act II of 1864. That Act does not make provision for claim petitions, suits and such like procedures as provided by the Code of Civil Procedure. Section 17 of that Act is as follows:
17. Where any person, not being a defaulter or responsible for a defaulter, may claim a right to the property distrained, and the distrainer may, notwithstanding, cause the same to be sold, such claimant on proof of such right in any civil Court of competent jurisdiction and in the event of the distrainer being unable to prove the responsibility for the arrear of revenue, on account of which the property may have been sold, shall recover from the distrainer the full value of such property, with interest, costs and damages, according to the circumstances of the case....(Portions not relevant omitted).
8. Thus, the law at present is that the Collector to whom a certificate is sent under Section 46 (2) could exercise the powers either under the Revenue Recovery Act, 1890 or under the Code of Civil Procedure, 1908. If he exercises the former power, it is the Revenue Recovery Act that will apply. If he exercises the powers under the Civil Procedure Code, its provisions will apply. Section 5 of the Revenue Recovery Act, 1890 is as follows:
5. Where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself.
9. Thus, in this case, there is no doubt that the plaintiff who is the owner of the property, is entitled to claim the value of the property because there is no dispute about his right, nor has it been established by the defendants that the plaintiff is in any way responsible for the arrear of revenue on account of which the property was sold. The plaintiff is entitled to claim compensation under provisions of Section 17 of the Revenue Recovery Act (Madras Act II of 1864). As I have already pointed out, the lower appellate Court has proceeded partly on this basis. It follows, therefore, that the judgment and decree of the lower appellate Court are correct and this second appeal is dismissed with costs. No leave.