KALAVATI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal against an order of remand passed by the lower appellate court arises in the following circumstances:

(2.) FROM the decrees in the two suits the defendants went up in appeal which in their turn were consolidated for hearing and disposed of by the Additional District Judge, Kanpur. In appeal it appears for the first time on behalf of the defendant-appellant that the question of limitation was agitated- A perusal of the judgment of the learned Additional District Judge shows that, while affirming the findings of the court of first instance on the question of title, he held that the suit being one for a declaration would be in the nature of a suit under Order 21, Rule 63, Civil Procedure Code, and ought to have been instituted within six months of the date of rejection of the objection of the plaintiffs before the Collector. The learned Additional District Judge further held that the question whether the plaintiffs were entitled to the exclusion of the time which elapsed during the pendency of the appeal against the order of the Collector, before the Commissioner and what was the length of that time were necessary to be determined before finding out whether the suit of the plaintiffs for declaration, namely, Suit No. 184 of 1962, was within time. Accordingly, the learned Additional District Judge allowed the appeal of the defendants, set aside the decree of the court below in the said suit and remanded the case to the court of first instance for recording of findings on the question of limitation in the light of the directions given. In the other suit, which was for injunction, the appeal of the defendants was also allowed and the learned Additional District Judge, holding that it was misconceived, dismissed it. Now Smt. Kalawati and Binda Prasad, the plaintiffs, have come up in appeal before this court in Suit No. 184 of 1962. They have conceded to the decree in the connected suit for injunction and have not appealed from the decree of the dismissal of that suit.

(3.) FROM the above arguments advanced before me at the Bar the basic question that arises for determination in this appeal is whether the order of the Collector rejecting the application of the plaintiffs for releasing the houses in suit from attachment or for lifting the attachment on the houses in suit was made under Order 21, Rule 58, of the Civil Procedure Code, and the instant suit which was subsequently brought would be a suit under Order 21, Rule 63, Civil Procedure Code. On behalf of the respondents reliance was placed on Deo Sharma v. Chartered Bank of India, 1955 ILR(All) 673 and Union of India v. Parvati Kuwar, AIR 1965 ALL 154. The former case was decided by a Division Bench of this court. In that case it was held that the attachment of an immovable property by the Collector in the course of recovery of income-tax dues will be deemed to be in exercise of powers under Order 21, Rule 58, of the Civil Procedure Code, as there was no provision under Section 146 of the U. P. Land Revenue Act for attachment of other immovable property of the defaulter though there was provision for the sale of such property. I do not think the ratio of the decision of that case helps the respondents as now under Section 279 of the U.P. Zamindari Abolition and Land Reforms Act, in its Clause (f), there is specific power conferred on the Collector to recover an arrear of land revenue by attachment and sale of other immovable property of the defaulter. It has not been disputed before me that the only provisions of law, which now are available in Uttar Pradesh for recovery of arrears of land revenue, are contained in the U.P. Zamindari Abolition and Land Reforms Act and the former Section 146 and certain other related sections of the U.P. Land Revenue Act stand repealed. It follows, therefore, that when the Collector takes proceedings for recovery of the income-tax dues which is realisable as arrears of land revenue he exercises his powers under the relevant provisions of the U. P. Zamindari Abolition and Land Reforms Act. In the latter case cited, which is a decision of a learned single judge of this court, the question that arose was whether a suit for a declaration that the attachment by the Collector of immovable property was null and void, which attachment was made in the course of realisation of income-tax dues as arrears of land revenue, could be filed against the Union of India without serving upon it and its officers a prior notice under Section 80 of the Civil Procedure Code ? The learned single judge held that such a suit could be filed without serving a prior notice under Section 80 of the Civil Procedure Code, as the proceedings in the suit were in continuation of the objection formerly raised before the Collector to which the Union of India and its officers were already a party. In the course of his reasoning no doubt the learned single judge drew analogy from the provisions of Order 21, Rule 58, and observed that the former objection could be deemed to be under that provision. I do not think I am bound by the reasoning or any observations made by the learned single judge in the course of his judgment. In the instant case due notice under Section 80 was served upon the Union of India before filing of the suit and no such question arises before me.