This is an appeal from the decision of the District Judge, Kashmir and arises out of the following circumstances.

(2) The controversy is in regard to the priority claimed by the State for recovery of income-tax due from an assesses against whom execution was taken out by the decree-holder for the recovery of the decretal amount. In the course of the execution proceedings two cheques for Rs. l,367/4/-and for Rs. 2,100/87 nP. due to the judgment-debtor were received from the Military authorities by the executing court.

The Tehsildar Assistant Collector, who was asked by the Income-tax Officer under S. 46 (2) of the Income-tax Act by issuing a certificate under his signature specifying the amount of arrears due from the assessee to recover the income-tax due from the assesses as arrears of land revenue, put in an application before the executing Court for recovery of Rs. 2,257/56 nP. due from the judgment-debtor on account of income-tax arrears and claimed priority over other unsecured creditors.

The executing Court of District Judge held that the income-tax Department had to be paid Rs. 2,257/56 as income-tax dues out of the assets of the judgment-debtor in preference to the other unsecured creditors. Against this order the creditor-decree-holder has come up in appeal.

(3) It is contended that the decree-holder had obtained attachment of the assessees moneys due from the Military authorities and as the moneys due to the judgment-debtor assesses were already attached at the instance of the creditor, the in-come-tax authorities could not claim any preference for the recovery of their dues over the decree-holder. It is further contended that the State becomes one of the creditors and is relegated to ratable distribution along with the decree-holders creditors and cannot claim priority over them.

In support of this contention reliance is placed on a ruling of the Calcutta High Court reported as Murli Tahilram v. T. Asoomal and Co., (S) AIR 1955 Cal 423, in which it has been held that the position in respect of Sales-tax in the State of West Bengal is that it is regarded as a "public demand" within the meaning of the Bengal Public Demands Recovery Act and is governed by that Act and Rules made there under. Bengal Public Demands Recovery Act and the Statutory Rules made there under do not give priority to the State or allow preferential payment to the State of its dues in respect of arrears of Sales-tax out of the moneys in the hands of a Receiver appointed by the court and directed to be paid by the court to the decree-holder prior to any intervention by the State,

(4) This authority does not help the appellant. The demand of Sales-tax by the State falls within the special Act called the Bengal Public Demands Recovery Act and the Rules made there under. There is no provision in the Act or in the Rules made under the Act giving priority to the State for its claim for arrears of Sales-tax, and, therefore, the State cannot claim any priority over the unsecured creditors for the recovery of Sales-tax from the assets of the judgment-debtor.

(5) The learned counsel for the appellant has relied upon another ruling of the Calcutta High Court, Basanta Kumar v. Panchu Gopal, (S) AIR

1956 Cal 23. This ruling also is of no assistance to the appellant. In this case it was held that

"Where the executing Court allows a claim for ratable distribution by a decree-holder and all that remains to be done is the ascertainment of the exact amount which each decree-holder is entitled to and payment of the same, the money in the hands- of the Court can no longer be considered in law to be the judgment-debtors money. If therefore, subsequent to such order a letter of attachment in respect of a public demand due from the judgment-debtor is received by the executing Court, the latter cannot take any action on such letter on the basis that it is still the judgment-debtors money. The executing Court having once declared that it is decree holders money