The question that arises for determination in both these applications is the same, whether the Court-fee payable on the plaint in each of these cases had to be calculated under the provisions of section 41(1) of the Madras Court-Fees and Suits Valuation Act, 1955 (Act XIV of 1955) or under the provisions of the residuary section, section 50 of that Act. The learned Subordinate Judge held that section 41 (1) provided the basis for the calculation of the Court-fee payable on each of the plaints.

Bommanna Chettiar, the second defendant in O.S. No. 93 of 1957, and Abu Bucker, the first defendant in O.S. No. 21 of 1958 were income-tax assessees. For the arrears payable by them, certificates were issued to the Collector under section 46 of the Income-tax Act. To realise these arrears the Collector attached certain properties. Claims were preferred that these properties had ceased to be the properties of the assessees. These claims were allowed by the Collector, and the properties were released from attachment. The Income-tax Department thereupon filed the two suits to set aside the summary orders passed by the Collector in the earlier proceedings, which resulted in the claims being allowed and the attachments being raised. On each of the plaints Court-fee was paid by the Department as plaintiff under section 50 of the Madras Court-Fees and Suits Valuation Act. Objection was taken to that by the Court-fee Examiner, and, as I have pointed out earlier, the learned Subordinate Judge held that Court-fee was payable under section 41 (1) of the Act.

Section 41 (1) runs:

“In a suit to set aside an attachment by a Civil or Revenue Court of any property, movable or immovable, or of any interest therein or of any interest in revenue, or to set aside an order passed on an application made to set aside the attachment, fee shall be computed on the amount for which the property was attached or on one-fourth of the market value of the property attached, whichever is less”.

The suits were to set aside the orders passed on applications to set aside attachments. The attachments were effected by the Collector, and the orders releasing them from attachment were passed by the Collector.

It was obviously in exercise of the powers vested in the Collector by the proviso to section 46 (2) of the Income-tax Act that he passed the orders, the validity of which had been challenged in the suits. Section 46 (2) provides for the recovery of the arrears of income-tax as an arrear of land revenue. The proviso to section 46 (2) runs:

“Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908, a Civil Court has for the purpose of the recovery of an amount due under a decree”.

In explaining the scope of the proviso, the Supreme Court pointed out in Purushotham Govindji Halai v. Collector of Bombay1, that

“the proviso did not prescribe two alternative modes of procedure at all. All that the subsection directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue that is to say, he has to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in that proceeding he is, under the proviso, to have all the powers of a Civil Court as under the Code. The sub-section does not prescribe two separate procedures ......In our opinion the proviso does not enact a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better mode of effective application of the only mode of recovery authorised by the body of sub-section (2) of section 46. If that be the position, the Collector would not be competent to take any independent proceedings under the Code of Civil Procedure, that is independent of the powers to recover an arrear of land revenue”.

In Dhanalakshmi A