J. V. GUPTA, C.J. - On the last date of hearing, actual date notice was issued to respondent No. 2, i.e., the Assistant Collector, Sales Tax, Haryana. According to the office report, the summons were duly sent to them under register cover as well and that they have been served. In spite of service, nobody is present on their behalf.

Andhra Bank filed a suit for the recovery of Rs. 11,67,184.85 against M/s. Enclave Electronics. During the proceedings an application under sections 94 and 151 of the Code of Civil Procedure, 1908 was filed for the sale of the immovable property in possession of the plaintiff, for the recovery of the said amount. The said application was allowed by the learned subordinate Judge vide order dated January 16, 1989. Accordingly, the goods mentioned in the Schedule attached to the application were ordered to be sold by the court auctioneer as per rules. It was further ordered that the sale proceeds be deposited in the bank after adjusting the necessary auction charges as per rules. The goods were accordingly sold by the court auctioneer and he made his report to the court. Since a sum of Rs. 47,520 was received by the court auctioneer in excess and over and above the amount of bid by the court, an application was filed by the auction purchaser for the refund of the said amount. The said amount was realised from the auction purchaser on account of the liability to pay the sales tax and the surcharge. Notice of the said application was issued to the sales tax authorities by the trial court. They resisted the said application on the ground that the sale of goods was a sale within the meaning of section 2 of the Haryana General Sales Tax Act, 1973 and section 2(g) of the Central Sales Tax Act, 1956 and therefore the same was liable to tax under the said provisions. The plea of the auction purchaser that the goods were pledged with the bank and the same were sold by the court auctioneer and so he is not liable for tax, was not accepted. However, the trial court dismissed the application on the ground that the auction purchaser was liable to pay the said amount of Rs. 47,520 by way of sales tax, as claimed by the Excise and Taxation Authorities, Haryana.

The learned counsel for the petitioner, i.e., the auction purchaser submitted that the question of charging the sales tax on the goods pledged by the court auctioneer did not arise as it was not a sale within the meaning of section 2 of the Haryana General Sales Tax Act or section 2(g) of the Central Sales Tax Act. In support of the contention, the learned counsel relied upon Deputy Commissioner of Commercial Taxes v. A.R.S. Thirumeninatha Nadar Firm [1968] 21 STC 184 (Mad.) wherein it was held :

"On the other item of turnover, however, we must disagree with the Tribunal. In so far as it held that the banks in selling the goods pawned to them did not act as the agents of the assessee, it was right. As pledgees, the banks, acting under section 176 of the Contract Act, had a right to sell the goods. Their sale was but an exercise of the statutory power and not as agents. But the sales were nevertheless on behalf of the pledger, for, the pawn or pledge by itself did not make the pawnee or pledgee the owner of the goods. The very concept of a pledge carries with it the elements of custody and a power to sell the goods in default of payment. This is evident in this case by the fact that after crediting towards the debts due from the pawner, the balance of the sale proceeds were paid over to him. We are also unable to accept the other view of the Tribunal that even assuming that the banks acted as agents, they would be dealers and they alone would be liable to pay the tax under section 8 or section 14(a)."

Consequently, this revision petition succeeds. The application for the refund of the abovesaid amount is allowed with no order as to costs.

Petition allowed.