RAMACHANDRA IYER, J. - One Kaniyambadi Abdul Shukkur Sahib was assessed to income-tax in a sum of Rs. 21,900. Acting under the provisions of section 46 (2) of the Indian Income-tax Act, the Income-tax Officer forwarded a certificate to the Collector specifying the amount of arrears due form the assessee for taking steps to recover the amount. Under section 42 (2) of the Act, it was open to the Collector to recover the amount due by way of income-tax, as if it were an arrear of land revenue. But this is not what he did. He applied to the Subordinate Judge of Vellore for levying execution by attachment and sale of immovable properties belonging to the assessee. Pending the execution petition, the assessee died and his legal representatives have been brought on record. They opposed the grant of the petition on the ground that it was not open to the Collector to apply to a civil court for execution, when there had been no decree making the assessee liable for the amount of tax. The learned Subordinate Judge overruled the objection and directed execution to proceed. The assessees legal representatives are challenging the order by this appeal. It is admitted that there is no fund in court which can be paid out to the Income-tax Officer on the ground that the Government have a priority in respect of there claim against the assessee. What the Collector applied for was the levy of execution under the Code of Civil Procedure. There is no decree by a civil court in favour of the Collector for the amount due by way of tax. What is stated is that as the amount of arrears mentioned in the certificate issued by the Income-tax Officer could be collected by the Collector, who has powers under the Code of Civil Procedure, it would be open to him to apply for execution of the assessment order in the civil court as if it was a decree of that court. Reliance is placed in support of the contention upon a Full Bench decision of this court in Manickam Chettiar v. Income-tax Officer, Madura. In that case, a sum of money was received in preference to the execution creditor at whose instance there was a sale in execution. It was held that the Crown, having the priority over all unsecured creditors, would be entitled to apply to the court for an order directing its debt to be paid out of moneys in court belonging to the debtor without having to file a suit. But that decision is not an authority for the proposition that, where there is no fund in court, it would be open to the Collector to apply for execution, as if the certificate issued by the Income-tax Officer is a decree of that court. There is nothing in section 46 (2) of the Income-tax Act to warrant any such position being taken up. That provision only enables the Collector to recover the amount of tax as if it was an arrear of land revenue. In so recovering the Collector is given powers of a civil court under the Code of Civil Procedure. There is nothing in the section to justify a petition to a civil court for directing attachment and sale of the property of the assessee. The Collector can certainly file a suit in respect of the amount mentioned in the certificate and if he obtains a decree he can recover the amount due by adopting the ordinary process of an execution in a civil court. But, in the present case, the only question is whether, there being no decree of a civil court, it will be open to the Collector to apply to the court for execution as if the certificate issued by the Income-tax Officer is a decree of that court. We are of the opinion that it would not be open to him to do so.
The order of the lower court levying execution cannot, therefore, be sustained. The appeal is allowed but there will be no order as to costs in the circumstances of the case.