KEJRIWAL, J. - (1.) THIS revision has been directed against the order dated 16. 11. 1989, passed by learned Distt. Judge, Dholpur, by which he partly rejected the application of the petitioner dated 16. 11. 1989.
(2.) THE brief relevant facts of the case are that on the request of Non-Petitioner No. 2, the Non-Pet. No. l, the Punjab National Bank, Dholpur, advanced a loan of Rs. 1,93,000/- (one lac ninety three thousand) on 27. 7. 85, to the Non-Petitioner No. 2, for purchasing a truck. Subsequently, the Non-Pet. No. 2 purchased truck No. RNT 921. THE Non-Pet. No. 2, executed a pronote and other documents for the repayment of the loan with interest and also hypothecated the truck in favour of Non-Pet. No. 1, the Punjab National Bank, Dholpur. When the Non-Pet. No. 2 did not repay the loan, the Punjab National Bank, filed a suit No. 5/1987, on 9. 8. 1988, against Non-Pet. No. 2 and guarantors in the Court of District Judge, Dholpur and prayed that a decree of Rs. 2,09, 727. 80 Paisa, with interest on the same from 14. 8. 1987, at the rate of 12 1/2% be passed against the non-petitioner No. 2 and the guarantors. It was also prayed that the loan be recovered from the sale of aforesaid hypothecated truck and other properties of the defendants. During the pendency of the suit, the plaintiff and also the guarantors submitted an application under Order 39 Rule 6 read with Order 38 Rule 5 CP. C. and it was prayed that non-petitioner No. 2 be directed to produce the aforesaid truck in the Court and the said truck be sold by auction. This application of the plaintiff was accepted by the District Judge, Dholpur, vide order dated 9. 8. 1988. The Non-Petitioner No. 2 was directed to produce the truck on 22. 8. 1988, before the Tehsildar, Dholpur, who was direced to auction the same and deposit the sale price in the Court. Subsequently, in accordance with the order dated 9. 8. 1988, the truck was auctioned on 21. 9. 1989, by the Tehsildar, Dholpur. The petitioner offerred the highest bid of Rs. 139,000/ -. The petitioner deposited l/4th amount of bid on the same day on 12. 10. 1989, the District Judge, Dholpur, accepted the bid. The petitioner was directed to deposit the balance amount within 15 days. The case was fixed before the District Judge, Dholpur, on 2. 11. 1989. On the said date, the petitioner submitted an application stating therein that he has already deposited l/4th amount of the bid and that he has purchased the truck free from all encumbrances. He prayed that 3/4th amount of the bid may be got deposited from him and he may be given sale certificate and possession of the truck. He further prayed that from this amount, dues of the transport department be deposited. This application of the petitioner was partly rejected by the District Judge, Dholpur, vide his order dated 16. 11. 1989. The District Judge, Dholpur, directed that 3/4 the amount of the bid be got deposited from the petitioner. But the learned District Judge, Dholpur, refused the prayer of the petitioner for adjustment of the dues of RTA from the sale proceeds. Being aggrieved with the aforesaid order, the petitioner has preferred this revision before this Court. As the question was important and the interest of Government was also going to be effected by this order, notice of revision was also served on the Government Advocate, who was supplied copy of revision and the order of District Judge, Dholpur, and was also heard. It has been argued by Mr. Keshote, counsel for the auction purchaser that in the proclamation of sale, issued for the auction of the truck, there is no mention that the purchaser will be further liable to make the payment of unpaid tax, under the Rajasthan Motor Vehicles Taxation Act, 1951 (for short 'the Act') that liability of unpaid tax under the aforesaid Act is on the Non-Petitioner No. 2, who was the registered owner of the truck and not of the purchaser and that the purchaser is liable to pay the tax under the Act only after the truck is registered in his name. He drew my attention to Section 13-B of the Act, which reads as under: - "13-B. Liability of transferee of vehicles (1) If the tax leviable in respect of any motor vehicle remain unpaid by any person liable for the payment thereof, and such person, before having paid the tax, has transferred the ownership of such vehicle or has ceased to be in possession or control of such vehicle, the person to whom the ownership of the vehicle has been transferred or the person who has possession or control of such vehicle shall also be liable to pay the said tax. (2) Nothing contained in this section shall apply to a person who has obtained possession or control of such vehicle by purchase in a public auction, conducted by a Govt. Department to recover the arrears of tax or penalty or under the order of a competent court. " According to Mr. Keshote, when a truck is purchased in public auction under an order of the competent court, the purchaser in court auction is not liable for the previous dues of tax under the aforesaid Act. He argued that when there is no liability of the petitioner to pay the tax of the previous period, the learned Judge should have not refused his prayer or should have directed the Non-Petitioner No. 2, to pay the previous dues of tax or should have held that the petitioner was not liable to make payment of the dues of Non-Petitioner No. 2 against the aforesaid truck. His contention is that he is not liable to make the payment of previous dues of any tax under the aforesaid Act as he was not the owner of the truck. He submits that till the truck is registered in his name, his liability does not arise for payment of even future tax under the aforesaid Act.
(3.) MR. Maloo, counsel for the Punjab National Bank argued that the bank advanced a loan of Rs. 1,93,000/- with interest and the Non-Petitioner No. 2 has not paid any amount against the loan. He submits that the truck has been auctioned only for Rs. 1,39,000/- and as such no amount of tax under the aforesaid Act can be deducted from this amount. He further argued that there is no liability of the bank or of the guarantors for the payment of dues against Non-petitioner No. 2. Mr. O. P. Garg, counsel for the Government argued that tax can be recovered either from the previous owner or from the subsequent auction-purchaser. He drew my attention to Section 4 of the aforesaid Act. He further argued that under section 5 of the aforesaid Act, tax leviable under section 4 shall be paid in advance by owner or by the person having possession or control over the vehicle. He argued that under these circumstances, the present purchaser is also liable to make the payment of dues against the truck. He further argued that Section 16 of the aforesaid Act provides that liability of a purchaser to pay the tax shall not be questioned or determined otherwise than as provided in the Act or Rules. Section 16 of the Act reads as under : - "16, Bar to Jurisdiction of civil and criminal courts in matter of taxation:- The liability of a person to pay the tax shall not be questioned or determined otherwise than as provided in this Act or in rules made thereunder and no prosecution suit or other proceeding shall lie against any officer of the State Government for anything in good faith done or intended to be done under this Act. " He further argued that tax can be determined only by Taxation Officer under Section 8-A of the Act. He drew my attention to Rule 36 of the Rajasthan Motor Vehicles Taxation Rules, 1952. In support of his arguments, Mr. Garg placed reliance on a judgment of Patna High Court in Mt. Rajo Kuer and another Vs. Brij Bihari Prasad and other (1), in which it has been held that auction purchaser is to enquire about encumbrance of property under 0. 21 R. 66 C. P. C. Mr. Garg further argued that if the petitioner did not make any enquiry regarding dues against the truck, he is liable to make the payment of the unpaid tax. ;