Mr. Justice Varadachariar before whom the case came on for hearing made the following order :

ORDER OF REFERENCE.

VARADACHARIAR, J. - Mr. Balasubramania Aiyar raised two questions before me, in support of this revision petition. On one of them I feel little doubt, but the other point is one of some importance and, notwithstanding the reliance placed on behalf of the Government on the decisions in Deputy Commissioner of Police v. Vedantam and Soneram Rameshur v. Mary Pinto. I think that it should be considered by a Division Bench or even by a Full Bench if the Chief Justice so directs.

This revision petition arises out of an application made by the Income Tax Officer of Madura South to the District Munsif of Madura Town, purporting to be under Sec. 151 C.P.C., and praying that out of some moneys in the custody of that court in the course of the execution of a decree obtained by the present petitioner against the assessee, the arrears of Income Tax due by the assessee, might be paid in the first instance. Two questions were raised before the lower court on behalf of the present petitioner, viz., (i) whether there the Governments claim was entitled to priority and (ii) whether, as a matter of procedure, the petition by the Income Tax Officer to the civil court was sustainable. On both those points the lower court held against the present petitioner and directed payment to the Government in the first instance. Hence this revision petition by the decree-holder.

So far as the priority of Governments claim is concerned, I see no reason to differ from the view taken by the lower court, Mr. Balasubramania Aiyar relied on an expression of doubt in Ramachandra v. Pitchaikanni as to the applicability in this country of the English doctrine relating to the priority of the Crown debts; but I think the weight of authority in favour of the recognition of that priority even in this country is so strong that this expression of doubt cannot help the petitioner to any material degree (Cf. 59 Mad. 428 and Varadachari v. Secretary of State, Gayanoda Bala Dassee v. Butto Kristo Bairagee, Soneram Rameshur v. Mary Pinto and the provisions in the Insolvency Acts relating to the priority of Crown debts).

It is on the question of procedure that I have felt some difficulty. Some of the cases above referred to arose out of applications on behalf of the Government to recover court-fees payable to Government in pauper suits. There is no difficulty in supporting the maintainability of the petition by Government in that class of cases, because the Civil Procedure Code treats the Government as a decree-holder to the extent of the court-fee payable and the ordinary procedure under the Code is available for the enforcement of that claim. In Soneram Rameshur v. Mary Pinto the petition related to the recovery of Income Tax, and in that sense the case is directly in point; but though the learned judge gave a ruling in favour of the maintainability of the petition, he also states that the application was not opposed on behalf of the respondents and that they consented to the payment. I am therefore unable to treated that decision as concluding the point. In Deputy Commissioner of Police v. Vedantam, Cornish, J., was dealing with a claim for arrears of motor tax, and relying upon In re Henley & Co., and on the decision in Gayanoda Bala Dassee v. Butto Kristo Bairagee the learned judge held that an application like the present must be treated as maintainable. The 33 Cal. case is not strictly analogous because it related to a claim for court-fee payable to Government in respect of which, as already observed, Government is in the position of a decree-holder. The proposition that the declaration of a first charge on the subject-matter of the suit does not preclude the Government from enforcing its claim as a decree-holder in other ways does not throw much light upon the question now raised before me. In re Henley & Co., no doubt, recognised the right of the Crown to pr