MATTAPALLI SATYAM Vs. KOLLURU KRISHNA MURTHY

JUDGEMENT

(1.) THIS appeal is filed under Clause 15 of the Letters Patent, by the 11th defendant against the judgment of our learned brother Venkatesam J. in A.S. No. 194 of 1962. The suit O.S. No. 60 of 1961 was filed in the court of the Subordinate Judge. Visakhapatnam, by the respondents for recovery of money due under a simple mortgage bond dated June 23,1952. The mortgagors fell into arrears of income-tax and hence item No. 1 of the plaint schedule, an upstair house at Vizianagaram, was sold in public auction at a revenue sale held in pursuance of a letter of request issued by the income-tax authorities under the provisions of the Madras Revenue Recovery Act, 1864 (II of 1864). The suit was resisted mainly by the appellant herein contending that as there was a purchase at a revenue sale, he got the property free from all the prior encumbrances and that his property is not therefore liable for the suit mortgage. The trial court as well as this court in Appeal No. 194/62 negatived this contention raised by the appellant.

(2.) THE main point for consideration in this appeal is whether the appellant (11th defendant) got the property free of all incumbrances under Section 42 of the Madras Revenue Recovery Act which reads as follows :

(3.) SIMILARLY in Ramachandra v. Pitchaikanni, 18847 ILR(MAD) 434. a sale was held under the provisions of the Madras Revenue Recovery Act for realisation of arrears of Abkari dues under the Madras Abkari Act. It was observed that the expression "in like manner as for the recovery of arrears of land revenue" occurring in the Abkari Act, does not have the effect of conferring a title upon the purchaser which is free from prior incumbrances. Reliance is placed for the appellant on a decision of Somayya J. in Secretary of State v. Jodaraj Dhupajee, AIR 1942 Mad 244. in which it was held that a sale under the Madras Revenue Recovery Act for the realisation of penal assessment due under the Madras Land Encroachment Act, 1905 (3 of 1905), passes a title which is free from incumbrances and that Section 42 of the Revenne Recovery Act is attracted. The cases arising under the Abkari Act and Income-tax Act were cited before the learned judge but they were distinguished on the ground that under the said Acts only the procedure for the recovery of arrears as under the Revenue Recovery Act was attracted and that the particular arrears due to the Government were not equated to land revenue by any provision of law therein. On the other hand, it was pointed out that Section 3 of the Land Encroachment Act specifically provided that the penal assessment due under the Act shall be deemed to be land revenue. Hence it was held in the said case that as the arrears due under a different enactment are deemed by a fiction of law to be equivalent to land revenue dues, a sale under the Revenue Recovery Act is a sale for recovery of land revenue and that, under those circumstances, Section 42 is attracted. But the said decision is not applicable to the present case, for there is no provision in the Indian Income-tax Act equating the arrears of income-tax to arrears of land revenue. The provisions of the Land Revenue Act are attracted only in so far as they related to realisation and procedure for the recovery of the land revenue. For all the above reasons, we bold that, in the present case, the appellant is not entitled to rely upon the provisions of Section 42 of the Madras Revenue Recovery Act. It follows that the sale in favour of the appellant is subject to the mortgage in favour of the plaintiff.