K.N. Seth, J. - (1.) In proceedings for recovery of arrears of sales tax from one Maharaj Kumar Mussoorie Shamsher Jang Bahadur Rana, a property known as Fair Lawn Palace. Jhari Pani, Mussoorie, was attached. The Appellants filed an objection claiming that the property did not belong to Maharaj Kumar Mussoorie Shamsher Jang Bahadur Rana. The case set up by the Appellants was that the family dispute between the Appellants and Maharaj Kumar Mussoorie Shamsher Jang Bahadur Rana was referred to arbitration of the Ruler of Nahan who gave his award on February 15, 1963, under which the Fair Lawn Palace and certain other properties were awarded to the share of the Appellants who became the absolute owners thereof. It was also claimed that the award had been made a rule of the Court and a decree had been passed by the learned Civil Judge, Dehra Dun, on May 6, 1963 and under that decree the Appellants were exclusively entitled to the property sought to be proceeded against.
(2.) The objection filed by the Appellants purported to be Under Order 21, Rule 58, Code of Civil Procedure. The SDO dismissed the objection without going into the merits of the claim put forward by, the present Appellants on the view that there was no provision in the Land Revenue Act for entertaining the present objection as preferred Under Order 21, Rule 58 Code of Civil Procedure. Aggrieved by the order of the SDO the Appellants filed a writ petition in this Court Under Article 226 of the Constitution which was also dismissed by a learned single Judge of this Court by his order dated 19th October, 1965.
(3.) We have heard learned Counsel for the parties and we are of the opinion that the view taken by the learned single Judge cannot be sustained. It is true that Order 21, Rule 58, Code of Civil Procedure does not specifically apply to recovery proceedings but the objections filed by the Appellants were maintainable Under Sec. 162 of the Land Revenue Act. Sec. 146 of the Land Revenue Act provides for the various processes through which the land revenue may be recovered. Under Clause (h) it can be recovered by sale of the immovable property of the defaulter. Sec. 162 of the Land Revenue Act provided: 162(1). If an arrear cannot be recovered by any of the above processes and the defaulter owns, or is in possession of, any other mahal, or any share in any other mahal, or any other immovable property, the Collector may proceed against such mahal, or share, or other immovable property as if it were the land on account of which the revenue is due, under the provisions of this Act: Provided that no interest save those of the defaulter alone shall be affected by such process and when such property is sold, the provisions of Sec. 161 shall not apply to such sale.;