INDER RAJ MALIK AND OTHERS vs JAYANTI FILMS (INDIA) PVT. LTD. AND OTHERS.

S. K. JAIN J. - A Hindu undivided family comprised of Janak Raj Malik as its karta and his wife, Smt. Sudershan Malik, and three sons, namely, Inder Raj Malik, Sanjiv Kumar and Anil Kumar Malik (a minor, date of birth being March 20, 1960), as its members were assessed to Income Tax. It committed a default in making payment of tax for the assessment years 1964-65, 1965-66, 1966-67, 1971-72 and 1973-74. The Income Tax Officer in exercise of his power u/s 222 of the Income Tax Act, 1961, forwarded to the Tax Recovery Officer a certificate dated March 25, 1975, under his signature specifying the amount of arrears due from the above-said assessee. The Tax Recovery Officer on receipt of such certificate proceeded under the said section to recover from the said assessee the amount specified therein by attachment and sale of the assessees immovable property, namely, Eros Cinema, subsequently named as Jay Cinema, along with land appurtenant thereto, situated in khasra No. 571, Old Railway Road, Gurgaon, in accordance with Part III of the Second Schedule to the Income Tax Act, 1961.

On August 27, 1975, Smt. Sudershan Malik, wife, Inder Raj Malik, Sanjiv Kumar, sons, and Janak Raj Malik, respondents Nos. 5 to 8, respectively, entered into an agreement to sell the above-said property in dispute to Messrs. Sujeta Consultants and Sales Pvt. Ltd., through Mr. D. P. Mehta, respondent No. 2, for a sale consideration of Rs. 7,25,000.

On October 21, 1975, respondents Nos. 5 to 8 entered into another agreement to sell the property in dispute in favour of Messrs. Jayanti Films (India) Pvt. Ltd., respondent No. 1, through respondent No. 2 for a sale consideration of Rs. 4,75,000. The possession of the property in dispute was delivered to respondents Nos. 1 and 2 by respondents Nos. 5 to 8.

Respondents Nos. 1 and 2 had paid Rs. 2,75,000 towards the sale consideration to the proposed vendors on two occasions and the balance amount of Rs. 2,00,000 was yet to be paid.

The Tax Recovery Officer proceeded u/s 222 of the Income Tax Act read with the rules contained in Part III of the Second Schedule to the Act and sold the above-said property of the assessee by public auction on March 28, 1977, for Rs. 4,06,000 in favour of respondents Nos. 1 and 2. The sale was confirmed on April 29, 1977.

Inder Raj Malik, Sanjiv Kumar Malik and Smt. Sudershan Malik filed Civil Suit No. 791 of March 27, 1980 against the respondents, Messrs. Jayanti Films (India) Pvt. Ltd., Shri D. P. Mehta, managing director and the Tax Recovery Officer. Anil Kumar Malik and Janak Raj Malik were also arrayed as pro forma respondents. Anil Kumar Malik filed an independent Civil Suit No. 792 of March 27, 1980, against the respondents. Both the suits were for declaration to the effect that they were owners to the extent of one-fourth share each and they sought a decree for possession as a consequential relief. They had also challenged the proceedings of the auction sale, confirmation of sale and adjustment of the amount of Rs. 2,75,000 paid by respondents Nos. 1 and 2 under the agreement.

Both the suits were contested by respondents Nos. 1 to 4. The stand taken by them is that the plaintiffs being party to the agreement to sell dated October 21, 1975, had no cause of action to bring the suit. The suit property belonged to the Hindu undivided family of Janak Raj Malik. In August, 1975, Janak Raj Malik was running the cinema business. He and his wife, Smt. Sudershan Malik, negotiated with respondents Nos. 1 and 2 for the sale of the suit property. A bargain was struck for a sale consideration of Rs. 4,75,000. A sum of Rs. 75,000 was paid on August 26, 1975, whereas another part of the sale consideration amounting to Rs. 2,00,000 was paid on October 21, 1975. In order to ward off any possibility of a future dispute, another agreement to sell was executed between the parties on October 21, 1975. This agreement was attested by Janak Raj Malik, karta of the Hindu undivided family, and the possession of the suit property was also delivered to respondents Nos. 1 and 2. The factum of the minority of Anil Kumar Malik was denied and it was averred that he, being a party to the transaction an signatory to the agreement and receipt of delivery of possession, could not challenge the same. It was further contended that Janak Raj Malik, karta of the Hindu undivided family, had to pay heavy arrears of Income Tax dues amounting to Rs. 1,50,000 plus interest and since the Hindu undivided family failed to pay all arrears of the said dues, the suit property was put to sale after due publication. Respondents Nos. 1 and 2 purchased the property in public auction for Rs. 4,06,000 on March 28, 1977, and the sale was confirmed on April 29, 1977. Out of the total sale consideration of Rs. 4,06,000, an amount of Rs. 2,46,000 was paid to the Tax Recovery Officer of the Income Tax Department, respondent No. 4, whereas the remaining amount was adjusted towards the payment made by respondents Nos. 1 and 2 to the prospective vendors. The plea of the plaintiffs to the effect that the Hindu undivided family ceased to exist on May 15, 1974, was denied and it was contended that Janak Raj Malik had suffered a collusive decree and judgment dated May 15, 1974, in order to deceive the Income Tax authorities and, therefore, such fraudulent and collusive decree cannot have the effect of disrupting the joint Hindu undivided family. The auction purchaser had paid Rs. 1,01,500 with the fall of the hammer along with Rs. 4,070 on account of other charges. The plaintiffs having not taken these objections at the time of confirmation of sale were now estopped from taking the same in the civil court.

On behalf of the Income Tax authorities, it was averred that in view of rule 11 of the Second Schedule to the Income Tax Act, 1961, the suits were not maintainable. The plaintiffs had a statutory right to file objections under the Income Tax Act before approaching the civil court. The property in dispute was owned by the Hindu undivided family. Janak Raj Malik was the karta and the plaintiffs were its members. Ignorance was shown with regard to the agreement dated August 27, 1974, on the ground that it was not brought to the notice of the Income Tax authorities either by the karta or by any other member of the Hindu undivided family. However, the existence of the agreement dated October 21, 1975, was admitted.

The parties fought the litigation on 12 issues including issues Nos. 1, 4, 5 and 6 in Civil Suit No. 792 as under :

Whether the plaintiff is the owner of a cinema concerned building and land, etc., appurtenent thereto previously named as Eros Cinema, Gurgaon, and now renamed as Jay Cinema as alleged ?

Whether the plaintiff was a minor on October 21, 1975, if so to what effect ?

Whether no proper attachment publicity, proclamation of sale and confirmation of sale was effected by the defendant No. 4 in accordance with the mandatory provisions of the Income Tax Act; if so its effect ?

Whether the suit is properly valued for purposes of court fee and jurisdiction ?

The learned trial court, vide its judgments and decrees of October 26, 1988, dismissed both the suits. Inder Raj and other plaintiffs in Civil Suit No. 791 filed Civil Appeal No. 24/13 of September 4, 1989 (instituted on January 3, 1989), whereas Anil Kumar Malik plaintiff in Civil Suit No. 792 of March 27, 1980, instituted Civil Appeal No. 3/13 on January 3, 1989. Both these appeals were heard by Mr. M. S. Sullar, Additional District Judge, Gurgaon, who, vide common judgment and decree dated April 2, 1990, dismissed both the appeals.

It is that judgment and decree of the first appellate court which has been appealed against by the two sets of defendants in Regular Second Appeal No. 1721 of 1990 by Inder Raj Malik and others and Regular Second Appeal No. 1722 of 1990 by Anil Kumar against Messrs. Jayanti Films (India) Pvt. Ltd. and others, which require my examination of its sustainability. Both these appeals having arisen out of one judgment and involving and identical question of law and facts are proposed to be disposed of by this common judgment.

I have seen the pleadings in the suits, the evidence adduced by the parties in the two suits and the judgments of both the courts below and have also heard learned counsel for the parties.

Learned counsel for the appellants has firstly argued that the appellants had become owners of the property in dispute through civil court judgment and decree dated April 19, 1975, exhibit P-A and exhibit P-B, and the findings of the courts below to the contrary were illegal because of the family partition whereby the suit property came to the share of the appellants and was also acknowledged by the Income Tax Officer, vide his order dated December 2, 1977, exhibit PW-5/H. I do not find any force in this argument. Section 171 of the Income Tax Act, 1961, deals with assessment after partition of a Hindu undivided family.

Admittedly, the property in dispute was originally Hindu undivided family property and even according to the appellants the Hindu undivided family was not disrupted prior to the passing of the judgment and decree, exhibit P-A and exhibit P-B, dated April 19, 1975. Anil Kumar plaintiff appearing as PW-5 in the opening line of his cross-examination has admitted that prior to May 15, 1975, the Hindu undivided family was the owner of the property in dispute and Janak Raj Malik was the karta of the Hindu undivided family. It was specifically put to him that Income Tax dues for the assessment years 1961-62, 1962-63, 1971-72 and 1973-74, total amounting to Rs. 2,46,000, were due from the Hindu undivided family up to May 15, 1974, and that in recovery proceedings of the said amount the property in dispute was attached. He could not dare to deny this fact although he has shown his ignorance. Mehar Singh, upper division clerk of the office of the Tax Recovery Officer, Rohtak, has appeared as DW-8. He deposed that the Hindu undivided family in question had fallen into arrears of Income Tax. Nobody had filed any objections against the auction of the suit property by the Income Tax Department. Exhibit D-27 is a notice from the Tax Recovery Officer, Rohtak, to the address of Janak Raj Malik informing him that the recovery certificate had been forwarded by the Income Tax Officer, Gurgaon, for recovery and that if the arrears of Income Tax are not deposited, his properties will be attached. Exhibit D-28 is a notice of demand issued to Janak Raj Malik in his capacity as karta of the Hindu undivided family. These documents would go a long way to show that the Hindu undivided family was in arrears of Income Tax. Notice, exhibit D-27, was issued on April 2, 1975, whereas demand notice, exhibit D-28, was issued on March 21, 1975, much prior to the passing of the collusive decree on April 19, 1975.

When the facts and circumstances of this case are examined in the light of the provisions of sections 171 and 222 of the Income Tax Act, the only conclusion that can be arrived at is that the property in dispute was not the individual property of the appellants and it continued to be Hindu undivided family property. The order, exhibit PW-5/H, dated December 2, 1975, of the Income Tax authority being against these provisions had no effect whatsoever on the right of the Income Tax Department to recover the arrears of Income Tax and other dues, interest and penalty whatsoever from the Hindu undivided family property. No doubt, the consent decree was a good decree and binds all concerned but in the peculiar circumstances of this case, the collusive decree dated April 19, 1975, had no effect on the right of the Income Tax Department to recover the arrears of Income Tax, etc., which were due from the Hindu undivided family prior to the disruption of the Hindu undivided family.

In CIT v. Sundaram [1976] ITR 339 , a Division Bench of the Karnataka High Court has held that for the purpose of the Income Tax Act, the Hindu undivided family is a separate unit of assessment and is an assessee in its right dependent on its members. Even if the partition had been effected that would not enable a member of the Hindu undivided family to escape from the obligation to discharge the tax liability out of the share of the Hindu undivided family allotted to him. Again in Venkatesh Dhonddev Deshpande Vs. Sou. Kusum Dattatraya Kulkarni and Others, , it was held that where the father is the karta of the Hindu undivided family and debts are contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property.

In view of the above discussion, I do not find any fault with the finding of the courts below to the effect that the judgment and decree, exhibit P-A and exhibit P-B dated April 19, 1975, were suffered by Janak Raj Malik in favour of the plaintiff in order to defraud the Income Tax authorities and to avoid payment of the arrears of Income Tax and that the same were not binding on respondents Nos. 3 and 4.

Secondly, learned counsel for the appellants has argued :

(a) that in the present case, the auction sale was held in pursuance of a proclamation which was vague and silent about the material particulars of the property and, therefore, in view of the provisions of rule 53 of the Second Schedule to the Income Tax Act, the sale was a farce and substantial injury was caused to the plaintiffs;

(b) that the publication was effected on March 16, 1977, and the auction took place on March 28, 1977, within less than 30 days, and, therefore, the provisions of rule 55 of the Second Schedule to the Act have been violated; and

(c) that in provisions of rule 57 of the Second Schedule to the Income Tax Act, 1961, which are in pari materia with Order 21, rules 84 and 85, Civil Procedure Code, were not complied with inasmuch as the full amount of purchase money payable by the purchaser to the Tax Recovery Officer was not paid on or before the 15th day from the date of the sale of the property as required under sub-rule (2) of rule 57 (ibid).

I have given thoughtful consideration to the above said arguments also but find no merit therein.

The following facts are not in dispute :

(i) the auction sale took place on March 28, 1977, as per bid sheet exhibit D-15;

(ii) that the amount of Rs. 2,75,000 was paid on behalf of respondents Nos. 1 and 2 to the prospective vendees (the plaintiffs) under the agreements of sale mentioned above;

(iii) that immediately after respondent No. 1 was declared to be the purchaser at the public auction sale that took place on March 28, 1977, 25 per cent. of the amount of the purchase money was deposited; and

(iv) that from a perusal of exhibit D-20 and exhibit D-9, both dated April 5, 1977, it is evident that the Tax Recovery Officer considered the application of the purchaser, respondent No. 1, regarding adjustment of an amount of Rs. 2,75,000 paid by them to the vendors towards the purchase money. He passed a well reasoned order, exhibit D-20, thereby granting permission to set off Rs. 2,00,000 only as against Rs. 2,45,000. On the basis of the said order, letter, exhibit D-9, was issued on the same date informing respondent No. 1 that as per reasons recorded separately they were permitted to deduct Rs. 2,00,000 out of Rs. 4,06,000 and deposit the balance amount payable, i.e., Rs. 1,04,500, within the stipulated period (Rs. 1,01,500 was paid at the time of sale). Their claim for Rs. 45,000 could not be adjusted.

A self-contained complete procedure for attachment and sale of immovable property of a defaulter assessee in execution of a certificate specifying the arrears due from the said assessee is provided u/s 222 of the Act and the Rules. Part III of the Second Schedule is comprised of rules 48 to 68A. This part deals with attachment and sale of immovable property. Under rule 48, attachment of the immovable property of the defaulter can be made. Rule 49 provides that a copy of the order of attachment has to be served on the defaulter. Proclamation of attachment is dealt with under rule 50. Rule 51 provides that where any immovable property is attached under this Schedule, the attachment shall relate back to, and take effect from, the date on which the notice to pay the arrears, was served upon the defaulter. Rule 52 provides that the Tax Recovery Officer may direct the sale of immovable property attached and then he shall cause a proclamation of the intended sale. Under rule 53 the contents of proclamation have been given, whereas the mode of proclamation is provided under rule 54. Rule 55 talks of the time of sale. The sale of the immovable property is desired to be made by public auction to the highest bidder under rule 56. Rule 57 talks of deposit by purchaser and resale in default. Procedure in default of payment has been provided in rule 58. Rule 59 supplies authority to the Income Tax Officer, if so authorised by the Commissioner, to bid for the property on behalf of the Central Government. The defaulter, or any person whose interests are affected by the sale, can move an application for setting aside the sale of the immovable property on deposit of the amount under rule 60 of the Rules. Under rule 61, the Income Tax Officer, the defaulter, or any person whose interests are affected by the sale of immovable property in execution of a certificate can move an application to set aside the sale of immovable property on the ground of (i) non-service of notice; or (ii) irregularity, within thirty days from the date of the sale. Rule 62 talks of setting aside the sale where the defaulter has no saleable interest. Under rule 63, sale is confirmed. The purchase money can be returned in certain cases under the provisions of rule 64. Where a sale of immovable property has become absolute, the Tax Recovery Officer shall grant a certificate specifying the property sold, and the name of the person who at the time of sale is declared to be the purchaser under rule 65. The sale can be postponed to enable the defaulter to raise the amount due under certificate under rule 66. Rule 67 provides that every re-sale of immovable property, in default of the deposit of purchase money within the period allowed for such payment, shall be made after the issue of a fresh proclamation. Rule 68 provides for the bid of the co-sharer to have preference. Under rule 68A property can be accepted in satisfaction of amounts due from the defaulter.

In view of the above scheme of Part III of the Second Schedule to the Income Tax Act, if the appellants were aggrieved by any action of the Tax Recovery Officer including those mentioned in clauses (a), (b) and (c) of the abovementioned second argument of their learned counsel, they could certainly file an application under rule 61 of the Rules within thirty days from the date of sale seeking setting aside of the sale of the property in dispute and then the Tax Recovery Officer on proof of substantial injury to the plaintiffs on account of the above mentioned irregularities was duty bound to set aside the sale. But, it is not even the case of the plaintiffs that they had moved such an application.

Rule 9 of the Second Schedule to the Income Tax Act, 1961, provides a general bar to the jurisdiction of the civil courts, save where fraud is alleged. It reads as under :

"9. Except as otherwise expressly provided in this Act, every question arising between the Income Tax Officer and the defaulter or their representatives relating to the execution, discharge or satisfaction of a certificate duly filed under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such certificate shall be determined, not by suit, but by order of the Tax Recovery Officer before whom such question arises."

Admittedly, the plaintiffs in Civil Suit No. 791 of March 27, 1980, have not alleged fraud. Their attack is on the grounds mentioned in clauses (a), (b) and (c) of the second argument of their learned counsel and, therefore, their suit is certainly barred under the provisions of rule 9 ibid. The learned courts below have rightly dismissed the same.

As far as the suit of the plaintiff, Anil Kumar, is concerned, he has no doubt, in para No. 1 of the plaint pleaded that he was a minor at the time of execution of the agreements dated August 27, 1975, and October 21, 1975, by the plaintiffs in Civil Suit No. 792 of March 27, 1980, and the said agreements were void ab initio to the extent of his share and further that no Income Tax was due from him as there was no Hindu undivided family since it had ceased to exist with effect from May 15, 1974, and all the proceedings taken by the Tax Recovery Officer were mala fide and without jurisdiction.

The above-said plea gives rise to two questions, namely, (i) whether the property in dispute ceased to be a Hindu undivided family property and was not available for attachment and sale in execution of the certificate issued u/s 222 of the Act and (ii) whether the plaintiffs had brought the suits within limitation. As far as the first question is concerned, in the earlier part of this judgment it has been held that in view of the provisions of section 171, the property in dispute remained Hindu undivided family property and order, exhibit PW-5/H, dated December 2, 1975, being against these provisions, had no adverse effect whatsoever on the right of the Income Tax Department to recover Income Tax and other dues from the Hindu undivided family property. Therefore, the learned courts below had rightly recorded concurrent findings against the said plaintiffs on this point also.

Learned counsel for the appellant has taken me through letter, exhibit D-3, dated December 9, 1976, from the Income Tax Officer, Distt. V (14), New Delhi, to the address of Shri Sukhdev Singh Thind, Tax Recovery Officer, Rohtak, exhibit D-24, letter dated November 18, 1976, from Messrs. Mathur and Company, chartered accountants, to the Tax Recovery Officer, Income Tax Department, Rohtak (Haryana), and exhibit D-25 a letter from the Income Tax Officer to Shri D. P. Mehta, managing director, respondent No. 2, and has argued that the attachment and sale of the property in dispute was unlawful and illegal.

I have carefully gone through these three letters. These letters do not in any way improve the case of the appellants. Para No. 3 of letter, exhibit D-3, from the Income Tax Officer to the Tax Recovery Officer reads as under :

"The assessee in his petition before the Commissioner of Income Tax has stated that a partition took place in the family on May 15, 1974. Return for the assessment year 1975-76 has not been filed and I have issued notice u/s 148 and am processing the assessment by issuing notice u/s 142(1). Unless order u/s 171 accepting the partition is passed by the Income Tax Department, the properties legally continue to be in the ownership of the Hindu undivided family. This agreement of sale by the members of the Hindu undivided family has nothing to do with our demand. At best it can be considered to be an agreement between the two parties and as such their individual agreement to defraud the Government revenue, cannot be given any weight. You are, therefore, perfectly within your right to proceed with the recovery of demand, by attachment, and auction of Eros Cinema at Gurgaon. Kindly take urgent necessary steps."

The abovesaid instructions by the Income Tax Officer to the Tax Recovery Officer were issued on December 9, 1976, after letter, exhibit D-24, was addressed by the chartered accountants of the plaintiffs to the Tax Recovery Officer. Letter, exhibit D-25, is an interim step by the Income Tax Officer thereby advising the Tax Recovery Officer, Rohtak, not to proceed with the auction till further instructions.

Letter exhibit D-38 from the Income Tax Officer, Distt. V (14), New Delhi, to the address of Mr. S. S. Thind, Tax Recovery Officer, Rohtak, shows that the objections of the assessees for the recovery of the arrears were found to be totally misconceived. He approached the Commissioner Income Tax, Delhi, requesting him that the cinema at Gurgaon may be auctioned. At that time, the following demands were outstanding against the assessee :

Assessment year

Demand

Remarks

1971-72

21,031

Regular

-do-

132

Interest

-do-

6,229

-do-

1973-74

50,789

Regular

-do-

17,776

Interest

-do-

2,031

-do-

1964-65

21,000

Annuity deposit

1965-66

20,120

-do-

1966-67

6,480

-do-

Total

1,45,588

The Tax Recovery Officer was directed to proceed with the proposed auction with speed to avoid any loss of revenue at a later stage.

Coming to the point of limitation, I find that the date of birth of Anil Kumar Malik, plaintiff, in Civil Suit No. 792, is March 20, 1960. He attained majority on March 20, 1978. I do not find any force in the argument of learned counsel for the appellant that in view of the provisions of articles 58 and 59 of the Schedule to the Limitation Act, the plaintiff could bring a civil suit within three years from the date of attaining majority and the present suit filed on March 27, 1980, i.e., after two years of his attaining majority, was within limitation because admittedly the property in dispute was attached and sold by public auction in execution of the certificate issued u/s 222 of the Income Tax Act, i.e., for the recovery of arrears of the Government revenue and, therefore, the case would squarely fall within the provisions of articles 99 and 100 of the Schedule to the Limitation Act. The suit could be brought within one year from the date when the sale was confirmed. In this case the sale was confirmed on April 29, 1977, and the suit having been instituted on March 27, 1980, was obviously time barred. The matter can also be looked at from another angle. An application for setting aside the sale could be filed under rule 61 of the Second Schedule to the Income Tax Act within thirty days from the date of sale, i.e., April 29, 1977. So, the plaintiff could challenge that order also within one year of his having attained majority. He attained majority on March 20, 1978. He could challenge that order up to March 20, 1979. Admittedly, the plaintiff did not avail of that remedy also within limitation.

Learned counsel for the appellant has argued that a Full Bench judgment of the court in Kishan Chand Aggarwal Vs. Union of India (UOI) and Others, had set aside the sale where the nature of the property required to be sold was not fairly and accurately described in the sale proclamation and that here, in this case also, the sale was held in pursuance of a proclamation which was vague and silent about the material particulars of the property.

But a perusal of the said judgment would show that therein objections had been filed under rule 61 of the Second Schedule to the Income Tax Act, which were rejected. An appeal against that order of rejection was filed before the Commissioner, Jullundur Division, wherein that order was reversed. A second appeal therefrom at the instance of the petitioner was dismissed by the Financial Commissioner, Punjab, as being incompetent and it was then that Civil Writ Petition No. 3384 of 1972 at the instance of the petitioner was filed. Therein all the orders including that of the Tax Recovery Officer were quashed and the Department was directed to reconsider to the objections as to the validity of the auction sale after giving due opportunity of producing their evidence to both the sides. Thereafter the Tax Recovery Officer (income tax Jullundur) accepted the objections and set aside the auction sale. This order of the Tax Recovery Officer accepting the objections was affirmed by the Additional Commissioner and then the said two orders were impugned by the petitioner in CWP No. 4533 of 1973, "inter alia", on the ground that both the Tax Recovery Officer and the Additional Commissioner acted in excess of their jurisdiction. That writ petition was admitted by the Full Bench in view of the fact that the petitioner had sought support from two decisions, namely, Gopi Chand v. Benarsi Dass AIR 1919 Lah 260 and Volkart Brothers of Karachi v. Ghulam Hamdani, AIR 1932 Lah 576, and one of them being a Division Bench decision, and the point involved the consideration of the view propounded on those decisions. The examination of the above judgment clearly shows that the person whose interests are affected by the sale has to seek remedy under rule 61 of the Rules.

The above discussion meets the second argument of learned counsel for the appellants.

Learned counsel for the appellant has argued that the sale was wiped out as the payment of the full amount of the purchase money was not made on or before the 15th day from the date of sale. In support of his argument, he has relied on Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, , and Ram Singh Vs. Uttam Chand, . I can possibly have no quarrel with the proposition of law laid down in the above-said judgment. But therein the provisions of Order 21, rules 84, 85 and 86, Civil Procedure Code, had been invoked. But, therein, these two cases the sale in execution of the certificate was governed by the provisions of rules 48 to 68A of the Second Schedule to the Income Tax Act which provide a complete procedure for dealing with all the possible situations. These rules are not in pari materia with the provisions of Order 21, rules 84, 85 and 86, Civil Procedure Code, and, therefore, the above-said two judgments are of no avail to the appellants.

The other two judgments relied upon by learned counsel for the appellants in support of his above-said contention are also of no assistance to them because in both of those judgments, namely, Sardara Gurdit Singh and Others Vs. Sardara Dharam Singh and Others, , and Ganga Singh v. State of Punjab [1968] 70 PLR 395, the provisions of sections 85, 88 and 89 of the Punjab Land Revenue Act which had been invoked were held to be in pari materia with Order 21, rules 84, 85 and 86, Civil Procedure Code, respectively.

In view of the above discussion, the impugned judgment and decree dated April 2, 1990, passed by the Additional District Judge, Gurgaon, is hereby confirmed. Resultantly, both these regular second appeals are dismissed being without merit. No costs.