C.S.P Singh, J.:— The petitioner is a partner, as Karta of Hindu Undivided Family in a firm which owns “Sheo Prasad Banarsi Das Sugar Mills, Bijnor”. A suit for dissolution of this firm was filed, and during the pendency of the suit, a Receiver over the assets of the firm was appointed by the Civil Judge. A preliminary decree for dissolution and accounting was passed which stands confirmed by the Supreme Court. The final decree has not yet been passed. The Receiver has been leasing out the Mills to one or other of the partners on payment by them in court of an annual consideration. A lease for a period of five years was granted to the petitioner by the receiver effective from 1-7-1966 to 30-6-1971 on an annual lease money of Rs. 6,65,000/-. The petitioner's case is that the lease was taken by him as Karta of the Hindu Undivided Family. This fact is, however, denied in the count er-affidavit. During the period of working of the Mills by the petitioner, an amount of Rs. 17,56,993,03 as purchase tax fell into arrear. Rs. 2,37,622/48 P. accrued as interest on the aforesaid purchase tax upto 31-3-1969 and an amount of Rs. 3,28,597/47 by way of penalty on purchase tax upto 31-3-1969. Thus an amount of Rs. 23,23,212/97 was in arrears under these heads. Further arrears of cane price, commission and interest amounting to Rs. 40,99,833/- was also due. Apart from these, employees provident fund dues amounting to Rs. 46,108,78 was also in arrears. The Sub-Divisional Officer, Bijnor who was Tax Recovery Officer for these amounts sent a notice to the petitioner on 9-2-1971 detailing these various amounts, and calling upon the petitioner as occupier of the Mills to arrange for their payment with in a week, failing which, it was stated in the notice that coercive measures would be adopted. These amounts of money were not paid by the petitioner, and thereafter he S.D.O attached one-third share of the Hindu Undivided Family in the Sugar Mills, and that attachment still continues Subsequently, on 23-4-1971, the Sub-Divisional Officer as Tax Recovery Officer, Bijnor sent a letter ta the Manager, Punjab National Bank, Bijnor, directing that all moneys receivable or which may have been received by the petitioner from the sale of he sugar stock stood attached, and the Manager was further directed to deposit all such sums as may be available with him with in three days, and continue to deposit the money in full as and when received, in the revenue account of the Tax Recovery Officer. Apart from this, the Sub-Divisional Officer/Tax Recovery Officer also attached the annual lease money that was being deposited by the petitioner in court. The petitioner's share in the afore-said lease money came to one-third. The petitioner had also installed new machinery in the Mills, and the Civil Judge by his order had directed that 25% of lease money deposited should be paid over to the petitioners towards costs of this machinery. This amount was also attached. On 30-4-1971, the Sub-Divisional Officer Tax Recovery Officer arrested the petitioner from the premises of Sheo Prasad Banarsi Dass Sugar Mills, and thereafter, the present petition was filed challenging the recovery proceedings. The petitioner was released on 3-5-1971 under the stay order passed by this Court, after having been in custody for about ten days.
2. Counsel for the petitioner has confined his contentions to the validity of the order of arrest and to the quantum of recovery. In respect of the penalty on purchase tax under the recovery certificate, it is urged that the penalty was imposed without any notice to the petitioner and as such the demand is invalid. In respect of the cane-price, commission and interest thereon, it is averred in paragraphs 14, 15, 16, 20 and 21 of the petitioner that firstly, the petitioner agreed to pay an amount of Rs. 10/- per quintal in he crushing season 1968-1969, in spite of the fact that the statutory price fixed was only Rs. 7.48 This payment it was said, was made under an assurance given by Sri Jagjiwan Ram, Minister for Food and Agriculture that the sugar factories would be reimbursed for the excess payment. It is, as such urged that the arrear of cane-price, commission and interest for 1968-1969 should be calculated on the basic of Rs. 7.48 per quintal, and not at Rs. 7.48 per quintal. In paragraphs 20 and 21 of the petition, it is stated that he statutory price for cane for this season was fixed at Rs. 7.37 per quintal. This price was fixed for new cane.
3. The petitioner crushed old cane amounting to 1.97,700 quintals in this season. The yield from he old cane was much less than that of new cane, and the price for this cane should have been fixed at Rs. 4.37 per quintal, and the petitioner should as such be allowed a consequential deduction in respect of this demand.
4. So far as the contention in respect of demand for penalty on purchase tax is concerned, that is covered by a decision of the Division Bench in the case of Shadi Lal Sugar and General Mills (P.) Ltd. v. State of U.P Civil Misc. Writ No. 4217 of 1971 deeded on 18-4-1972 and Civil Misc. Writ No. 5064 of 1971 decided on 29-3-1972. wherein it has been held that penalty on purchase tax cannot be imposed without notice to the petitioner. This being so, the demand for Rs. 3,28,597/47, and the recovery certificate for this amount cannot be upheld. The contention that the sugar price for the crushing season 1968-1969 should be calculated at Rs. 7.48 per quintal instead of Rs. 10/- and the demand certificate in respect of this was erroneous, cannot, however, be satisfactorily decided in this writ petition. There is a factual dispute on this aspect of the matter and it is not possible to decide this controversy on affidavits alone. This contention as such cannot be accepted. In respect of the old cane, in a number of writ petitions, one of them being, Civil Misc. Writ No. 70 of 1973 decided on 24-10-1973, since thereafter affirmed in Special Appeal No. 291 of 1973 decided on 19-12-1973 it has been held that the statutory price fixed for new cane cannot be applied for old cane, and direction was issued for refixation of the price in respect of old cane. In view of his decision, it is to be held that the order dated 12-11-1970 (Annexure “B” to the writ petit on) of the Central Government in so far as it relates to old left over sugar cane is not valid. But even if the penalty on purchase tax, and the cane price commission and interest on old cane are not valid, a huge amount was still in arrear as against the petitioner when he was detained. The respondents as such were entitled to adopt coercive measures for real ??? of these arrears. The petitioner in this petition so far as recovery is concerned has confined his argument to the validity of the process for his arrest and detent on, and does not challenge the recovery by other processes. Counsel has contended that the lease of he factory was taken out by the petitioner in his capacity as Karta of the Hindu Undivided Family, and as such he could not have been arrested for the realisation of the arrears. In this context he has drawn my attention to a decision of the Supreme Court in Kapurchand Shri mal v. Tax Recovery Officer, Hyderabad A.I.R 1969 S.C 682. relating to realisation of income tax. Their Lordships of the Supreme Court on a consideration of he provisions of Income-tax Act and Rules, held that Manager of an Hindu Undivided Family cannot be arrested for realisation of the arrears of the assessee—Hindu Undivided Family. This case cannot be appropriately applied to the present one in as much as it is denied in the counter-affidavit that the lease was taken out by the petitioner on behalf of Hindu Undivided Family.
5. It is then urged that the resort to detention of the petitioner was a malafide or an arbitrary exercise of the powers in the circumstances of the case, in as much as the opposite-parties had attached all the assets of the petitioner and made it impossible for him to pay the arrears. In paragraphs 19 and 21 of the counter-affidavit, it is stated that the order was not passed due to any malice, but on account of the fact that the other processes were not yielding any result. Now, the question as to whether he other processes were sufficient for realisation of the arrears could have been determined appropriately in case he properties had been put to sale. The stage for selling the properties was not, however, reached and the petitioner was arrested before that. In, these circumstances it cannot be said that the attached properties were valueless. However, the petitioner has not stated anywhere in his petition that the attached properties were sufficient to clear off the arrears, for had that been so, the detention of the petitioner could have been struck down on this ground alone in view of the decided on of a Division Bench in the case of Satya Narain v. The Sales Tax Officer, Circle III Kanpur Civil Misc. Writ No. 1525 of 1970 decided on 22-9-1970.. The arrears in question on were being realised in exercise of powers conferred under Sec. 279 of the U.P Zamindari Abolition and Land Reforms Act. There is nothing in the U.P Zamindari Abolition and Land Reforms Act which makes it incumbent on the recovery officer to resort to arrest, only after exhausting the other processes, or preventing him from adopting all the processes at the same time. The allegation of malice being denied, it is not as such possible to hold that he resort to detention of the petitioner was in any way arbitrary or actuated by malice. This, however, does not dispose of the matter, for it has been con-ended that the petitioner could not have been arrested without notice. Sec. 341 of the U.P Zamindari Abolition and Land Reforms Act makes the provisions of the Code of Civil Procedure applicable to all proceedings under the Act. This section runs as thus:—
“Section 341, Application of certain Acts to the proceedings of this Act. Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908; and the (Limitation Act, 1963) including Sec. 5 hereof shall apply in the proceedings under this Act.”
6. The procedure for execution of decrees of civil courts is contained in Sec. 51 of the Code of Civil Procedure. Sec. 51(c) of the Code provides for execution by arrest and detention. There is, however, a proviso added to this section which prevents execution by arrest and detention, unless after giving notice to the judgment-debtor, the court for reasons to be recorded in writing comes to the conclusion set out in clauses (a), (b) and (c). It is not disputed that the provisions relating to arrest and detention as contained in Sec. 51 are not satisfied in the present case. Counsel for the respondents has, however, urged that these provisions cannot appropriately be applied to cases relating to recovery of arrears to tax, which are realised as arrears of land revenue. It has been contended that arrears of land revenue cannot be equated with the decrees of civil courts and this being so, Sec. 51 of the Code does not apply. It is undoubtedly true that Sec. 51 in terms does not apply to recovery of arrears of land revenue. The question, however, is whether the language of Sec. 51 of the Code of Civil Procedure, which is a part of the Code can be modified in its application to the realisation of arrears of tax which are realised as arrears of land revenue. To illustrate the point, reference may be made to Sec. 297(d), and (f) which contemplates recovery by attachment and sale of other immovable property of the defaulter and by appointment of Receiver of any property movable or immovable of the defaulter. The procedure for sale of immovable property is contained in Older 21, Rule 66, C.P.C Order 21, Rule 66 contemplates proclamation of the intended sale and in that proclamation details of the property to be sold, the revenue assessed upon he estate, incombrance on the property liable to, amount for the recovery of which the sale ordered or any other matter which the court considered material for the purchase to know in order to judge of the nature and value of the property is to be set out. Order 21, Rule 67 sets out, the mode of making proclamation. Order 21, Rule 68 makes it incumbent that the sale should take place not before thirty days after the expiration of the proclamation or fifteen days in the case of immovable property. Order 21, Rule 69 provides for adjournment or stoppage of sale. Order 21, Rule 71 provides for the liability of the defaulting purchaser for loss on resale. Order 21, Rule 72 forbids the decree-holder to bid at the sale without permission of the court. Order 21, Rule 73 places a restriction on bidding by officers. Order 21, Rules 74 and 75 relates to sale of agricultural produce and growing crops. Order 21, Rule 77 contains a special procedure for sale of movable property, and makes the sale complete on payment of the auction money. Order 21, Rule 83 makes provision for postponement of the sale in order to enable the judgment-debtor to raise the amount of the decree. Order 21, Rule 84 directs deposit by purchaser of 25% of the auction money and re-sale on default. Order 21, Rule 85 provides for deposit of the full, purchase money on the 15th day from the sale of the property. Order 21, Rule 86 sets out the procedure for re-sale in case of default of payment and for forfeiture of the amount paid by the purchaser. Order 21, Rule 87 provides for notification of the re-sale and Order 21, Rule 88 provides for the bid of a co-sharer to have preference. Order 21, Rule 89 makes provision for application to set aside the sale on deposit made by the person owning such property or holding an interest therein. Order 21, Rule 90 sets out the ground on which the sale becomes absolute. Order 21, Rule 92 provides for the circumstances in which the sale become absolute. Order 21. Rule 93 provides for return of the auction money to the purchaser where the sale is set aside under Order 21, Rule 92. Order 21, Rule 94 provides for the gran of a certificate to the auction purchaser of the sale of the property. Order 21, Rule 95 provides for delivery of he property in the occupation of the judgment-debtor. Order 21, Rule 96 provides for delivery of property in the occupancy of a tenant and Order 21, Rule 97 provides for the procedure of making an application by the auction purchaser in case of obstruction to delivery of possession. Order 21, Rule 98 provides for cases of resistance or obstruction by the judgment debtor. Order 21, Rule 99 provides for cases of dismissal of the application by the auction purchaser in case the court is satisfied that the obstruction is by bonafide claimant to the property. Order 21, Rule 100 provides a forum for making an application by a person who has been dispossessed in execution of the decree and Order 21, Rule 101 for the bonafide claimant being restored in possession. Order 21, Rule 103 makes the order passed in the proceedings subject to a regular suit. The provisions relating to attachment of property are contained from Order 21, Rule 54 to Order 21, Rule 57. Order 21, Rule 58 provides for objection to the attachment and investigation of the objection Order 21, Rule 60 provides for release of the property in case the court is satisfied that the attachment was not valid. Order 21, Rule 62 provides for continuance of the attachment in case the court is satisfied that the property is subject to a mortgage or charge in favour of some person not in possession. Order 21, Rule 63 provides for establishment of claims by objector in a regular suit case the objections are not upheld by the attaching court.
7. So far as the U.P Zamindari Abolition and Land Reforms Act is concerned, provision is made specifically for the application of the provisions of the Code of Civil Procedure relating to attachment and rule of movable property by Sec. 282(2) of the Act. The Act does not, however, contain any detailed procedure for the attachment and sale of the holding or other immovable property. Rules 272 to 286 contain some provision relating to the procedure to be adopted for attachment and sale of immovable property. Rule 273-A of the Rules provides for attachment of holding or other immovable property to be made in accordance with Order 21, Rule 54 of the Code of Civil Procedure. There is, however, no provision for removal of attachment in case the amount of arrears is paid or for objection to the attachment as are contained in Order 21, Rules 55 and 57 or for investigation of dam under Order 21, Rule 58, or release of attached property under Order 21, Rule 60, or the right to establish such claim by way of regular suit as set out in Order 21, Rule 53. So far as other immovable property is concerned, the procedure for making a proclamation under Order 21, Rule 66 and mentioning the particulars of property etc. or for objection to the proclamation are not provided for. Neither is there any corresponding provision like Order 21, Rule 67. Rule 285-A of the Rules framed under the U.P Zamindari Abolition and Land Reforms Act provides for the time of sale and as such corresponds to Order 21, Rule 68. There is, however, no provision correspond to Order 21, Rule 69 which provides for adjournment or stoppage of sale. Rule 285-B corresponds to Order 21, Rule 73 and likewise Rule 285-C to Order 21, Rule 83. Similar is the position in respect of Rule 285 D and E and Order 21. Rules 84, 85 and 86. The field covered by Order 21, Rule 89 is occupied by Rule 285-H and that by Order 21, Rule 90 by Rule 285-1. Rule 285-J and K correspond to Order 21, Rule 92. Order 21, Rule 93 is similar to Rule 285-L and Order 21. Rule 94 to Rule 285-D. There is, however no provision corresponding to Order 21, Rule 69 which provides for adjournment or stoppage of sale. Rule 285-B corresponds to Order 21, Rule 73 and likewise Rule 285-C to Order 21, Rule 83. Similar is the position in respect of Rule 285-D and E and Order 21, Rules 84, 85, and 86. The field covered by Order 21, Rule 89 is occupied by Rule 285-H and that by Order 21, Rule 90 by Rule 285-I. Rule 285 and K correspond to Order 21, Rule 92. Order 21, Rule 93 is similar to Rule 285-L and order 21, Rule 94 to Rule 285-M. There is, however, no provision corresponding for Order 21, Rule 91 which permits a purchaser to have the sale set aside on the ground that the judgment debtor has no saleable interest. The Rules do not also contain any provision for delivery of the property sold to the auction purchaser and he objection that may be filed. There is detailed provision in respect of this matter in Order 21, Rule 95 to Order 21, Rule 103 of the Code of Civil Procedure. It will thus be seen that although provision is made in respect of some matters under the Rules relating to the procedure to be adopted for effecting attachment and sale of immovable property, a large number of her matters are not provided for under the Rules. The matters in respect of which no provisions are made like setting out the valuation of the property, incumbrance etc. the consideration of objection to the attachment, setting aside of the sale at the instance of the auction purchaser when it is established that the judgment-debtor had no interest in the property that had been sold, and for putting auction purchaser into possession, are matters of vital importance, and I am of the view that the omission to provide for these matters was not purposive. The Rule making authority may in its wisdom have omitted to make provision for these makers, as by Sec. 341 of the U.P Zamindari Abolition and Land Reforms Act, the Code of Civil Procedure was made applicable. I am unable to agree with the contention that in as much as provision has been made only in respect of certain matters relating to attachment and sale of immovable property, he rule making authority or the legislaure purposely omitted to adopt the other provision of the Code of Civil Procedure in respect of realisation of arrears of land revenue. The reason appears to, be that it was thought fit to provide for the matters set out in the Rules mentioned above because the Rules in some respects, on these matters make a departure from the provisions of Order 21. The scheme appears to be that in these matters where it was thought fit to make a departure from the provision of the Code specific Rules were framed on that topic, and the rest was left to be governed by the provisions of the Code of Civil Procedure. This being so, the provisions of the Code of Civil Procedure, have in the circumstances, and in the context of the Act to be read with suitable adaptation so as to make them applicable to proceedings for realisation of arrears of land revenue. In case, this is not done, the result would be that none of the provisions of the Code of Civil Procedure which contains principles of equity, and safeguard the interests of the auction purchaser and the judgment-debtor would be applicable. Such a result, would in my view he against the ??? of Sec. 341 of the U.P Zamindari Abolition Land Reforms Act Sec. 341 of the Act begins with the words, “unless otherwise expressly provided by”. This implies that the provisions of the Code of Civil Procedure apply in all cases except where a particular matter has been specifically provided for by the Act or under the Act i.e by Rules framed under the Act. It may also be pointed out that a Division Bench of thus Court in W.P 3264 of 1971 decided on 19-5-1972 while interpreting Sec. 286-A which relates to the appointment of Receiver, has held that the principles underlying Order 41, Rule 1 apply to appointments of Receiver I do not find any reason to hold that the same principle would not apply when it comes to appointment of Receiver under Sec. 279(b) and Sec. 281 of he Act which deal with arrest and detention cannot be read as containing exhaustive provision for he manner in which the recovery by this mode can be effected. Although Sec. 281 provides certain exceptions against arrest, on he strength of which it has been contended that no fetter, apart from the contained in Sec. 281 can be imposed on this mode of recovery I am unable, for the reasons already given, to hold that this excludes Sec. 341 of the Act and the corresponding application of Sec. 51, C.P.C when resort is had to recovery by arrest and de tention.
8. The petition is accordingly partly allowed. The order of the Central Government dated 12-11-1970 in so far as it relates of the old left over sugar-cane Annexure B to the petition) and the consequent notice of demand dated 9-2-1971 and all previous notices in respect of old cane based on the price fixed under that order shall not be given effect to till the Central Government refixes the prices for the old cane. The demand of penalty on purchase tax upto 31-3-1269 and the demand notice dated 9-2-1971 in respect thereof is quashed. The respondents are also restrained from arresting the petitioner in respect of the amount of arrear except otherwise than in accordance with the law and in accordance with the observation made in this judgment. The petitioner is entitled to his costs.
9. Petition partly allowed.