A.K. Kirty, J. - (1.) THIS appeal was heard by a Division Bench constituted by Dwivedi and Hari Swarup JJ. On a difference of opinion between them, the following question has been referred for opinion to another judge: " Whether the expression 'decree for the payment of money' in Rule 16(1) includes a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5, Code of Civil Procedure ?"
(2.) RULE 16(1) referred to in the question is RULE 16(1) of Schedule II of the Income-tax Act, 1961, and reads as follows: " 16. Private alienation to be void in certain cases.--(1) Where a notice has been served on a defaulter under RULE 2, the defaulter or his representative-in-interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money." Although a pure question of law has been referred for opinion, it seems necessary to state the material facts very briefly. The respondent-bank had advanced a certain sum of money to the Cawnpore Rolling Mills (Private) Ltd. Appellant No. 1, Suraj Prasad Gupta, at the relevant time was the managing director of the said company. Appellant No. 2 is his brother. To secure the loan which was advanced by the bank to the company, the two appellants stood sureties and mortgaged bungalow No. 14/26, Civil Lines, Kanpur, to the bank on April 21, 1964. The loan in question not having been paid, the bank filed Suit No. 25 of 1966, both against the principal debtor, that is, the company and the two sureties, namely, the present appellants. In the suit a compromise decree was passed on April 16, 1966. This was a decree for sale under Order XXXIV, Rule 5 of the Civil Procedure Code (hereinafter referred to as " the Code ") It appears that there was some mistake in the decree and an application was made by the judgment-debtors for correction of the decree on July 12, 1966. Thereafter, the decree appears to have been corrected and on November 15, 1967, the respondent-bank applied for execution of the decree by sale of the mortgage security. The terms of the sale were settled on September 25, 1968, and November 18, 1968, was fixed for sale. On November 15, 1968, the present appellants appear to have made an application in the executing court for staying the sale on the ground that in view of Rule 16(1) of Schedule II of the Income-tax Act, the executing court has no jurisdiction to sell the property. On that date an order staying the sale was passed on the condition that the judgment-debtors waived fresh proclamation of sale in future. It appears that notices of demand for payment of arrears of income-tax were given to appellant No. 1 under Rule 2 of Schedule II of the Income-tax Act on April 14, 1965, and August 18, 1965. The executing court by an order dated March 14, 1969, dismissed the objection of the appellants and directed the execution to proceed. It, however, further directed that in case any money is received by sale of the property it would not be given to any party until the question of priority between the income-tax department and the respondent-bank is decided. According to Dwivedi J., the words "decree for the payment of money" in Rule 16(1) are not intended to include a decree for sale of the mortgage security under Order XXXIV, Rule 5, of the Code. A contrary view has been taken by Hari Swarup J. The said two learned judges have given different reasonings for their respective opinions.
(3.) SECTION 222 of the Income-tax Act provides that when an assessee is in default or is deemed to be in default in making a payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee and the Tax Recovery Officer on receipt of such certificate shall proceed to recover from such assessee the amount specified therein by one or more of the modes in accordance with the rules laid down in the Second Schedule. The modes mentioned in SECTION 222 are : (a) attachment and sale of the assessee's movable property; (b) attachment and sale of the assessee's immovable property; (c) arrest of the assessee and his detention in prison ; (d) appointing a receiver for the management of the assessee's movable and immovable properties. In the Income-tax Act itself there is no substantive provision for superseding or overriding the claim or rights of a secured creditor of the assessee. Schedule II mentioned in Section 222 contains statutory rules in accordance with which the modes of recovery mentioned in the section have to be exercised. Schedule II clearly, therefore, relates to procedure only and does not deal with substantive rights. It is true that arrears of income-tax can be realised from the person and property of the assessee by following any of the modes mentioned in Section 222 of the Act. The provision for recovery of tax by any of the modes specified cannot, in the absence of any specific statutory provision, take away the rights of any third party in whose favour a mortgage security had already been created. When a mortgage is created a definite right accrues to the mortgagee and he acquires an interest in the very property itself which has been mortgaged to him. This interest cannot be denied to him unless a valid law is made in that behalf and, needless to say, such a law, if made, must not contravene Article 31 of the Constitution. I am, therefore, of the opinion that nothing can be read in Rule 16 of Schedule II of the Income-tax Act which may have the effect of denying the legal right of a mortgagee or a mortgagee in whose favour a decree for sale under Order XXXIV, Rule 5, of the Code, has been passed and that Rule 16 must be strictly construed and no extended or wide meaning can be given to the language of Rule 16(1). Rule 16 and in particular Sub-rule (1) and the expression "in execution of a decree for the payment of money" occurring therein must be given a restricted meaning. This expression is to be found in various provisions of the Code itself. On an examination of the same, vis-a-vis, certain other relevant provisions of the Code, it will, to my mind, be clear that the expression " decree for the payment of money " does not include a decree passed under Order XXXIV, Rule 5, for sale of a mortgage security.;