JUDGMENT

R.S. Pathak, J. - This is a revision application under Section 115 of the Code of Civil Procedure praying for the quashing of an order made by the learned Civil Judge, Varanasi. The case first came on for hearing before our brother Asthana who being of the opinion that a question of substantial importance arose in the case referred it to a larger Bench.

2. The respondents, Moolchand, Haridas and Raghunath Prasad, constituted a partnership firm, Messrs Kanhaiya Oil Mills, which had a branch business under the name of Moolchand Haridas. The applicant, the Hindustan Commercial Bank Ltd., obtained a decree against Moolchand Haridas for Rs. 25,000/-. The applicant put the decree into execution against the three partners, and in execution attached three houses belonging to them. Two houses. No. K. 46/186 and K. 47/144, were auctioned on July 9, 1959 for a total sum of Rs. 4,600/-, and the sale was confirmed on September 22, 1959. The third house, No. K. 47/103, was auctioned on July 14, 1959 for Rs. 9,500/. and the sale was confirmed on Oct. 25, 1960. Pursuant to income tax assessments against the partnership firm, M/S Kanhaiya Oil Mills, its liability to income tax was determined at Rs. 1,48,378/-. The Income Tax Officer issued a certificate under Section 46(2) of the Income Tax Act for the recovery of this tax to the Collector of Varanasi desiring that recovery proceedings be taken against the three partners. Consequent upon this recovery certificate, the Collector addressed a letter on July 14, 1959 to the court executing the applicant's decree and prayed that the sale proceeds of the three houses be adjusted towards the satisfaction of the income tax liability assessed against Messrs Kanhaiya Oil Mills. On January 2, 1960 the applicant filed an objection against the claim made by the Collector. The executing Court held that the income tax dues were recoverable from the three partners of Messrs. Kanhaiya Oil Mills of which Moolchand Haridas was a branch business, that for the purpose of recovering income tax dues it was not necessary for the Collector to follow the procedure laid down for recovery of arrears of land revenue, and that he could in this behalf invoke the inherent powers of the court by an application under Section 151 of the Code of Civil Procedure. Accordingly, the Court, treating the Collectors letter as an application under Section 151, directed that the sale proceeds should be first paid towards the income tax dues.

3. Before us, learned counsel for the applicant contends that the Collector has not established that a debt was due to the Income Tax Department and that even if he succeeded in doing so the debt was due from Messrs. Kanhaiya Oil Mills and not from the partners who were distinct in law from the partnership firm. The question whether or not a debt is due to the Income lax Department depends upon whether, pursuant to the assessment, a notice of demand under the Income Tax Act has been issued. In Doorga Prasad v. Secretary of State, AIR 1945 P.C. 62 it was observed :

"In their Lordships opinion although income tax may be popularly described as due for a certain year, it is not in law so due. It is calculated and assessed by reference to the income of the assessee for a given year, but it is due when demand is made under Section 29 and Section 45. It then becomes a debt due to the Crown, but not for a particular period."

4. Learned counsel for the applicant says that the issue of a notice of demand has not been proved. This objection was not taken before the court below. We see no reason why it should be allowed to be raised now. Indeed, it is possible to say that a certificate having been issued by the Income Tax Officer under Section 46(2) of the Income Tax Act it should be presumed that a notice of demand was issued.

5. We are also unable to accept the contention that the tax cannot be recovered from the respondents, Moolchand, Haridas and Raghunath Prasad. The assessment was made against Messr