BODDAPATI RAMACHANDRA RAO Vs. SPECIAL DEPUTY TAHSILDAR

JUDGEMENT

(1.) FOR realising certain arrears of income tax due from Sri Radhakrishna Rice Mills, property to the extent of Act 40 17 cents in Tamirisa village was brought to sale by the Special Deputy Tahsildar, Income tax, Vijaywada, under the provisions of the Second Schedule to the Indian IT Act of 1961. The property was purchased by the petitioner for a sum of Rs. 10,200 subject to a mortgage in favour of the Indian Bank, Gudivada. The sale was as on 9th March, 1964. On 5th Aug., 1964, without notice to the petitioner and without an application either by the ITO, defaulter or any other interested person to set aside the sale, the Spl. Dy. Collector. Income tax (the TRO) by his order Rc. A. 1205 62 set aside the sale on the ground that the sale was vitiated by an irregularity in that the proclamation of sale did not mention the mortgage in favour of the Indian Bank, although the sale itself was subject to the mortgage. Mr. C. Narasimhachari, learned counsel for the petitioner, contends that the TRO had no jurisdiction to set aside the sale in the absence of an application by anyone to set aside the sale. Rule 56 of Sch. II to the Indian IT Act states that : "The sale shall be by public auction to the highest bidder and shall be subject to confirmation by the TRO." Rule 60 provides for an application to set aside the sale by the defaulter or other interested person on depositing the amounts specified in the proclamation of sale for the recovery of which the sale was ordered, etc. Rule 61 provides for an application to set aside the sale by the ITO, the defaulter or other interested person on the ground of any material irregularity in the conduct of the sale. Rule 63(1) states :

(2.) IT is evident that r. 63 is in pari materia with O. 21, r. 92, of the CPC. Under this rule, the TRO has no option but to confirm the sale if there is no application for setting it aside. The mere fact that the sale is subject to confirmation by the TRO does not mean that the TRO has the discretion to refuse to confirm the sale even if there is no application to set it aside. His jurisdiction to refuse to confirm a sale arises only if there is an application either under r. 60 or r. 61 to set aside the sale and not otherwise. In the present case it is admitted that the petitioner complied with all the requirements of law for perfecting his sale and that there is no impediment whatever for confirmation of the sale. There is admittedly no application to set aside the sale and it was the duty of the TRO to confirm the sale. The writ petition is, therefore, allowed and the order of the TRO setting aside the sale and the appellate order of the Collector confirming the order of the TRO are hereby quashed. The petitioner is entitled to his costs. Advocate's fee Rs. 100.