judgement:
ivil Appeals Nos. 170 to 173 of 1968.
Appeals by special leave from the judgment and order dated August 25, 1967 of the Mysore High Court in Writ Petitions Nos. 741, 973, 974 and 975 of 1966.
B. Sen, section N. Prasad and R. B. Datar, for the appellant (in all the appeals).
53 Janardan Sharma, for the respondents Nos. 4 to 14 (in C.A. No. 170 of 1968) respondents Nos. 4 to 24 and 26 to 53 (in C.A. No. 171 of 1968), respondent No. 4 (in C.A. No. 172 of 1968) and respondents Nos. 4 to 17 (in C.A. No. 173 of 1968).
The Judgment of the Court was delivered by Bhargava, J.
"these four connected appeals have been filed, by special leave, by the Town Municipal Council, Athani, and are directed against a common judgment of the High Court of Mysore in four writ petitions, filed by the appellant under article, 226 of the Constitution, dismissing the writ petitions.
The circumstances in which these appeals have arisen may be briefly stated.
Four different applications under section 33C,(2) of the No. 14 of 1947 (hereinafter referred to as "the Act") were filed in the Labour Court, Hubli, by various workmen of the appellant.
Application (LCH) No. 139 of 1965 was filed by eleven workmen on 28th July, 1965, seeking computation of their claim for overtime work for the period between 1st April, 1955 and 31st December, 1957, and for work done on weekly off days for the period between 1st April, 1955 and 31st December, 1960.
The amount claimed by each workman was separately indicated in the application under each head.
The total claim of all the workmen was computed at Rs. 62,420/82P according to the workmen themselves.
The second application (LCH) No. 138 of 1965 was presented by 50 workmen on 23rd July, 1965, putting forward a claim for washing allowance at Rs. 36 each from 1st January, 1964 to 30th June, 1965, and cost of uniform at Rs. 40 each from 1st January 1964 to 30th June, 1965 in respect of 18 of those 50 workmen.
The third application (LCH) No. 101 of 1965 was filed by one workman alone on 19th April, 1965, claiming a sum of Rs. 8,910/72P in respect of his over time work and compensation for work done on weekly off days.
The fourth application (LCH ) No. 140 of 1965 was filed on 26th July 1965 by 14 workmen making a total claim of Rs. 17,302/60P, for work done on weekly off days during the period from 1st December, 1960 to 30th June, 1965.
13 of the workmen claimed that they were entitled to payment at Rs, 1190 each, while one workman 's claim was to the extent of Rs. 1832/60P. The Labour Court at Hubli entertained all these applications under section 33C(2) of the Act, computed the amounts due to the various workmen who had filed the applications, and directed the appellant to make payment of the amounts found due.
Thereupon, the appellant challenged the decision of the Labour Court before the High Court of Mysore by four different writ petitions under article 226 of the Constitution.
The order in Application (LCH) No. 139/1965 was challenged in, 54 Writ Petition No. 741 of 1966, that in Application (LCH) No. 138/1965 in Writ Petition No. 973 of 1966; that in Applica tion (LCH) No. 101 of 1965 in Writ Petition No. 974 of 1966; and that in Application (LCH) No. 140/1965 in Writ Petition No. 975/1966.
The principal ground for challenging the decision of the Labour Court was that all these amounts could have been claimed by the workmen by filing applications under section 20(1) of the No. 11 of 1948; and, since that Act was a self contained Act making provision for relief in such cases, the jurisdiction of the Labour Court under the general Act, viz., the was taken away and excluded.
It was further pleaded that the jurisdiction of the Labour Court to deal with the claims under section 20(1) of the had become time barred and such claims, which had become time barred, could not be entertained by the Labour Court under section 33C(2) of the Act.
Some other pleas were also taken in the writ petitions which we need not mention as they have not been raised before us.
The High Court did not accept the plea put forward on behalf of the appellant and dismissed the writ petitions by a common order dated 25th August, 1967.
These four appeals are directed against that common order dismissing the four writ petitions.
Civil Appeals Nos. 170, 171, 172 and 173 of 1968 are directed against the order governing Writ Petitions Nos.
741/ 1966, 973/11966, 974/1966 and 975/1966 respectively.
In these appeals in this Court also, the principal point urged by learned counsel for the appellant was the same which was raised before the High Court in the Writ Petitions, viz., that the jurisdiction of the Labour Court to deal with the claims of the workmen under section 33C(2) of the Act, was barred by the fact that the same relief could have been claimed by the workmen under section 20(1) of the .
In the course of the arguments, however, learned counsel conceded that he could not press this point in Civil Appeal No. 171 of 1968 arising out of Writ Petition No. 973 of 1966 which was directed against the order of the Labour Court in Application (LCH) No. 138 of 1965, because the claim in that application before the Labour Court was confined to washing allowance and cost of uniform which are items not governed by the at all.
His submissions have, therefore, been confined before us to the other three appeals in which the claim of the workmen was for computation of their benefit in respect of overtime work and work done on weekly off days.
It may be mentioned that the objection to the jurisdiction of the Labour Court was raised on behalf of the appellant not 55 only in the writ petitions before the High Court, but even before the Labour Court itself when that Court took up the hearing of the applications under section 33C(2) of the Act.
However, the ground for challenging the jurisdiction of the Labour Court was confined to the point mentioned by us above.
It was not contended either before the Labour Court or in the writ petitions before the High Court that the applications were not covered by the provisions of section 33C(2) of the Act.
The plea taken was that, even though the applications could be made under section 33C(2) of the Act, the jurisdiction of the Labour Court to proceed under that provision of law was barred by the provisions of the .
Mr. B. Sen, appearing on behalf of the appellant, wanted permission to raise the question whether these applications before the Labour Court were at all included within the scope of section 33C(2) of the Act; but, on the objection of learned counsel for the respondents, the permission sought was refused.
As we have mentioned earlier, the jurisdiction of the Labour Court on this ground was not challenged either before the Labour Court itself or before the High Court.
No such ground was raised even in the special leave petition, nor was it raised at any earlier stage by any application.
It was sought to be raised by Mr. Sen for the, first time in the course of the arguments in the appeals at the time of final hearing.
We did not consider it correct to allow such a new point to be raised at this late stage.
However, another new point, which had not been raised before the Labour Court and in the writ petitions before the High Court, was permitted to be argued, because it was raised by a separate application, presented before the hearing, seeking permission to raise it.
The new question sought to be raised is that, even if the applications under section 33C(2) of the Act were competent and not barred by the provisions of the , they were time barred when presented under article 137 of the Schedule to the No. 36 of 1963.
The question of limitation was incidentally mentioned before the, Labour Court as well as the High Court, relying on the circumstance that applications under section 20(1) of the could only have been presented within a period of six months from the date when the claims arose.
At that stage, reliance was not placed on article 137 of the Schedule to the ; but, well before the final hearing, a written application was presented on behalf of the appellant seeking permission to raise this plea of limitation in these appeals.
Notice of that application was served on the res pondents well in time, so that, by the time the appeals came up for hearing, they knew that this point was sought to be raised by the appellant.
A question of limitation raises a plea of want of jurisdiction and, in these cases, this question could be decided 56 on the basis of the facts on the record, being a pure question of law.
It is in this background that we have permitted this question also to be raised in these appeals, though it was not put forward either in the High Court or before the Labour Court.
Thus, we are concerned in these appeals with the two aspects relating to the exclusion of the jurisdiction of the Labour Court to, entertain applications under section 33C(2) of the Act because of the provisions of the , and the plea that the applications under section 33C(2) of the Act were time barred Dr at least part of the claims under the applications were ame barred in view of article 137 of the schedule to the .
On the first question, both the Labour Court and the High Court held that the contention raised on behalf of the appellant that the jurisdiction of the Labour Court was excluded because of section 20(1) of the has no force, on the assumption that the claims made in these applications under section 33C(2) of the Act could have been presented before the Labour Court under section 20(1) of the .
In our view, this assumption was not justified.
As we shall indicate hereafter, the claims made by the workmen in the applications under section 33C(2) of the Act could not have been made before the Labour Court under section 20(1) of the , so that it is not necessary for us to decide the general question of law whether an application under section 33C(2) of the Act can or cannot be competently entertained by a Labour Court if an application for the same relief is entertainable by the Labour Court under section 20(1) of the .
The long title and the preamble to the show that this Act was passed with the object of making provision for fixing minimum rates of wageaein certain employments The word "wages" has been given a wide meaning in its definition in section 2(h) of that Act and, quite clearly, includes payment in respect of overtime and for work done on weekly off days which are required to be given by any employer to the workmen under the provisions of that Act itself.
Section 13(1), which deals with weekly off days, and section 14(1), which deals with overtime, are as follows : "13.
(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; 57 (b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest; (c) provide for payment for work on a day of rest at a rate not less than the overtime rate." "14.
(1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher.
" In order to provide a remedy against breach of orders made under sections 13(1) and 14(1), that Act provides a forum and the manner of seeking the remedy in section 20 which is as follows : "20.
(1) The 'appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen 's Compensation or any officer of the Central Government exercising functions; as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of subsection (1) of section 13 or of wages at the overtime rate under section 14, to employees employed or paid in that area.
(2) Where an employee has any claim of the, nature referred to in sub section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub 58 section (1), may apply to such Authority for a direction under sub section (3) : Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable: Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct (i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess; (ii) in any other case, the payment+ of the amount due to the employee together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees, and the Authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the Authority hearing any application under this section is satisfied that it was either malicious, or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered 59 (a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or (b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the Authority under this section shall be final.
(7) Every Authority appointed under sub sec tion ( 1 ) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898.
" We have mentioned these provisions of the , because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates rates of minimum wages, overtime rates, rate for payment for work on a day of rest and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the No. 4 of 1936, and the No. 14 of 1947.
In section 20(1) of the also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates, of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub section (1) of section 13 or of wages at the overtime rate under section 14.
This language used in section 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates.
If there be no dispute as to rates between the employer and the employees, section 20(1) would not be attracted.
The purpose of section 20(1) seems to be to ensure that the 'rates prescribed under the are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under section 20(1).
In cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime 60 or work on off days is due to a workman or not, the appropriate remedy is provided in the .
If the payment is withheld beyond the time permitted by the even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under section 15(1) of the .
In cases where section 15 of the may not provide adequate remedy, the remedy can be sought either under section 33C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act.
In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that section 20(1) of the should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed.
It is true that, under section 20(3), power is given to the Authority dealing with an application under section 20(1) to direct payment of the actual amount found due; but this, it.
appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings.
The power to make orders for payment of actual amount due to an employee under section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act.
This interpretation, in our opinion, also harmonises the provisions of the with the provisions of the which was already in existence when the was passed.
In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under section 33C(2) of the Act were of such a nature that they could have been brought before the Authority under section 20(1) of the inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off days.
We have examined the applications which were presented before the Labour Court under section 33C(2) of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in contesting those applications and we are unable to find that there was any dispute 61 relating to the rates.
It is true that, in their applications, the workmen did plead the rates at, which their claims had to be computed; but it was nowhere stated that those rates were being disputed by the appellant.
Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, there was no pleading that the claims of the workmen were payable at a rate different from the rates claimed by them.
It does appear that, in one case, there was a pleading on behalf of the appellant that no rates at all had been prescribed by the Mysore Government.
That pleading did not mean that it became a dispute as to the rates at which the payments were to be made by the appellant.
The only question that arose was whether there were any rates at all fixed under the for overtime and for payment for work done on days of rest.
Such a question does not relate to a dispute as to the rates enforceable between the parties, so that the remedy under section 20(1) of the could not have been sought by the applicants in any of these applications.
No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under section 33C(2) of the Act being barred because of the provisions of the .
The first point raised on behalf of the appellant thus fails.
In dealing with the second question relating to the applicability of article 137 of the schedule to the to applications under section 33C(2) of the Act, we may first take notice of two decisions of this Court on the scope of the parallel provision contained in article 181 of the First Schedule to the Indian No. 9 of 1908.
Article 181 of that Schedule laid down that the period of limitation for an application, for which no period of limitation was provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908, would be three years, and the time from which the period would begin to run would be when the right to apply accrued.
The scope of this article was considered first by this Court in Sha Mulchand & Co. Ltd. (In Liquidation) vs Jawahar Mills Ltd.(1) where the Court had to consider the question whether this article would govern an application made by the Official Receiver under section 38 of the Indian Companies Act for rectification of the register of a limited company.
The Court noted the fact that the advocate appearing in the case relied strongly on article 181 of the and, thereafter, took notice of the fact that that article had, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure.
The Court also dealt with the argument advanced (1) ; 62 that the reason for holding that article 181 was confined to applications under the Code was that the article should be construed ejusdem generis and that, as all the articles in the third division of the schedule to the related to applications under the ' Code, article 181, which was the residuary article, must be limited to applications under the Code.
That reasoning, it was pointed out, was no longer applicable because of the amendment of the by the introduction of articles 158 and 178 which governed applications under the Arbitration Act and not thus under the Code.
The Court then considered the views expressed by the various High Courts in a number of cases and held : "It does not appear to us quite convincing, without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in article 181.
This long catena of decisions may well be said to have, as it were, added the words 'under the Code ' in the first column of that article.
If those words had actually been used in that column, then a subsequent amendment of articles 158 and 178 certainly would not have affected the meaning of that article.
If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available.
" This earlier decision was relied upon by the Court in Bombay Gas Co. Ltd. v Gopal Bhiva and Others(1), where the Court had to deal with the argument that applications under section 33C of the Act will be governed by three years ' limitation provided by article 181 of the .
The Court, in dealing with this argument held : "In our opinion, this argument is one of desperation.
It is well settled that article 181 applies only to applications which are made under the Code of Civil Procedure,, and so, its extension to applications made under section 33C(2) of the Act would not be justified.
As early (1) ; , 722 23. 63 as 1880, the Bombay High Court had held in Rai Manekbai vs Manekji Kavasji(1), that art 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta vs Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Mulchand & Co. Ltd. vs Jawahar Mills Ltd.() to suggest that the amendment of article 158 and 178 ipso facto altered the meaning which had been attached to the words in article 181 by judicial decisions, but this attempt failed, because this Court held 'that the long catena of decisions under article 181 may well be said to have, as it were, added the words "u nder the Code" in the first column of that Article '.
Therefore, it is not possible to accede to the argument that the limitation prescribed by article 181 can be invoked in dealing with applications, under section 33C(2) of the Act.
" It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and applicability of article 137 in the new of 1963.
The language of article 137 is only slightly different from that of the earlier article 181 inasmuch as, when prescribing the three years period of limitation, the first column giving the description of the application reads as "any other application for which no period of limitation is provided elsewhere in this division.
In fact, the addition of the word "other" between the words "any" and "application" would indicate that the legislature wanted to make it clear that the principle of interpretation of article 181 on the basis of ejusdem generis should be applied when interpreting the new article 137.
This word "other" implies a reference to earlier articles and, consequently, in interpreting this article, regard must be had to the provisions contained in all the earlier articles.
The other articles in the third division to the schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases applications under the Code of Criminal Procedure.
The effect of introduction in the third division of the schedule of reference to applications under the Arbitration Act in the old has already been considered by this Court in the case of Sha Mulchand & Co. Ltd. (3).
We think that, on the same principle, it (1) (1880) 1. L. R. (2) (1932) L. R. 60 1.
A. 13, 20 (3) ; 64 must be held that even the further alteration made in the articles contained in the third division of the schedule to the new containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary article 137 which deals with other applications.
It is not possible to hold that the intention of the legislature was to drastically alter the scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure.
This point, in our opinion, may be looked at from another angle also.
When this Court earlier held that all the articles in the third division to the schedule, including article 181 of the of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the application must be presented to a Court governed by the Code of Civil Procedure.
Even the applications under the Arbitration Act that were included within the third division by amendment of articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil Procedure.
At best, the further amendment now made enlarges the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure.
One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division.
The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than courts, such as a quasi judicial tribunal, or even an executive authority.
An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure.
We cannot, therefore, accept the submission made that this article will apply even to applications made to an Industrial Tribunal or a Labour Court.
The alterations made in the article and in the new Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than courts, are now to be governed for purposes of limitation by article 137.
Reliance in this connection was placed by learned counsel for the appellant primarily on the decision of the Bombay High Court in The Manager, Mls.
P. K. Porwal vs The Labour Court at Nagpur(1).
We are unable to agree with the view taken by the Bombay High Court in that case.
The High Court ignored the circumstance that the provisions of article 137 were sought to be applied to an application which was presented not to a court but (1) 70 B. L. R. 104.
65 to a Labour Court dealing with an application under section 3 3C (2) of the Act and that such a Labour Court is not governed by any procedural code relating to civil or criminal proceedings.
That Court appears to have been considerably impressed by the fact that, in the new of 1963, an alteration was made in the long title which has been incorrectly described by that Court as preamble.
Under the old , no doubt, the long title was "An Act to consolidate and amend the law for the limitation of suits and for other purposes", while, in the new Act of 1963, the long title is "An Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith".
In the long title, thus, the words "other proceedings" have been added; but we do not think that this addition necessarily implies that the is intended to govern proceedings before any authority,.
whether executive or quasijudicial, when, earlier, the old Act was intended to govern proceedings before civil courts only.
It is also true that the preamble which existed in the old of 1908 has been omitted in the new Act of 1963.
The omission of the preamble does not, however, indicate that there was any intention of the legislature to change the purposes for which the has been enforced.
The, Bombay High Court also attached importance to the circumstance that the scope of the new has been enlarged by changing the definition of "applicant" in section 2(a) of the new Act so as to include even a petitioner and the word " application" so as to include a petition.
The question still remains whether this alteration can be held to be intended to cover petitions by a petitioner to authorities other than Courts.
We are unable to find any provision in the new which would justify holding that these changes in definition were intended to make the applicable to proceedings before bodies other than Courts.
We have already taken notice of the change introduced in the third division of the schedule by includ ing references to applications under the Code of Criminal Procedure, which was the only other aspect relied upon by the Bombay High Court in support of its view that applications under section 33C of the Act will also be governed by the new article 137.
For the reasons we have indicated earlier, we are unable to accept the view expressed by the Bombay High Court; and we hold that article 137 of the schedule to the does not apply to applications under section 33C(2) of the Act, so that the previous decision of this Court that no limitation is prescribed for such applications remains unaffected.
The appeals fail and I are dismissed with costs.
One hearing fee.
V.P.S. Appeals dismissed.

summary/full:
Applications, in which the claim of the workmen of the appellant for computation of their benefit in respect of over time work and work done on weekly off days, were entertained by the Labour Court, under section 33C(2) of the .
The Labour Court computed the amounts due to the various workmen and directed the appellant to make the payments.
Writ petitions filed by the appellant in the High Court challenging the decision of the Labour Court were dismissed.
In appeal to this Court, it was contended that : (1) The jurisdiction of the Labour Court to proceed with the applications was barred by the provisions of the ; and (2) Even if the applications were competent and not barred by the , they were time barred under article 137 of the .
HELD : (1) The is concerned with the fixing of rates rates of minimum wages, overtime rates, rates for payment of work on a day of rest and is not intended for enforcement of payment of wages.
Under section 20(1) of the, , in which provision is made for seeking remedy in respect of claims arising out of payment of less than minimum rates, or in respect of remuneration for days of rest, or for work on such days, or of wages at the overtime rates, the Authority is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates.
The power under section 20(3) of the given to the Authority dealing with an application under section 20(1) to direct payment of the actual amount found due, is only an incidental power for working out effectively the directions under section 20(1) fixing various rates under the Act.
That is, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not, then section 20(1) of the would not be attracted at all, and the appropriate remedy would only be either under section 15(1) of the , or under section 33C(2) of the .
[59 D G; 60 B C] In the present case, there was no dispute by the appellant about the rates put forward by the workmen; and a pleading by the, appellant in one ' of the applications that the State Government had not prescribed any rates under the , did not mean that there was a dispute as to the rates claimed by the workmen.
Therefore, the remedy under section 20(1) of the could not have been sought by the workmen, and hence, the question of the jurisdiction of the Labour Court to entertain the applications under section 33C(2) of the industrial Disputes Act being barred because of the, provisions of the , could not arise.[61 A D] 52 (2) (a) Though the question of limitation under article 137 of the 1963Act was not raised either in the Labour Court or the High Court, it could be allowed to be raised in this Court, because, a question of limitation raises a plea of want of jurisdiction and is a pure question of law, when it could be decided on the basis of the facts on the record, and the respondents had sufficient notice of the question.
[55 G H] (b) Article 137 of the governs only applications presented to courts under the Civil and Criminal Procedure Codes.
The use of the word 'other ' in the first column of the article giving the description of the application as 'any other application for which no period of limitation is provided elsewhere in this division ', indicates that the Legislature wanted to make it clear that the interpretation put by this Court in Mulchand vs Gopal Bhiva; , , 722 723 on article 181 of the 1908 Act on the basis of ejusdem generis should be applied to article 137 of 1963 Act also, the language of which, is only slightly different from that of article 181 of the 1908 Act.
That is, in interpreting article 137 of the 1963 Act regard must be had to the provisions contained in the earlier articles.
These articles refer to applications under the Code of Civil Procedure, to two cases of applications under the Arbitration Act, and to two cases of applications under the Code of Criminal Procedure.
This Court in Mulechand & Co. Ltd. case held that the reference to applications under the Arbitration Act had no effect on the interpretation of article 181 of the 1908 Act and that, that article applied only to applications under the Code of Civil Procedure.
On the same principle, the further alteration made in, the articles in 1963 Act containing reference to applications under the Code of Criminal Procedure could not alter the scope of article 137 of the 1963 Act.
Moreover even the applications under the Arbitration Act were to be presented to courts whose proceedings are governed by the Code of Civil Procedure.
The further amendment including applications governed by the Criminal Procedure Code still shows that the applications must be to courts.
The alterations in the 1963 Act, namely, the inclusion of the words 'other proceedings ' in the long title to the 1963 Act, the omission of the, preamble and change in the, definition so as to include 'petition ' in word 'application ', do not show an intention to make article 137 applicable to proceedings before bodies other than courts such as quasi judicial tribunals and executive bodies.
[63 D H; 64 A G; 65 B F] In the present case, since the applications were presented to the Labour Court, a tribunal which is not a court governed by the Civil or Criminal Procedure Codes, the applications are not governed by article 137 of 1963 Act.
[65 G H] Manager Mls.
P. K. Porwal vs The Labour Court at Nagpur, 70 B.L.R. 104, overruled.


judgement:
Appeal No. 808 of 1966.
Appeal by special leave from the judgment and order dated September 3, 1965 of the Gujarat High Court in Civil Revision Application No. 244 of 1965.
82 Arun H. Mehta and I. N. Shroff, for the appellant.
S.T. Desai, P. C. Bhartari, J. B. Dadachanji and O. C. Mathur, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The respondent is the owner of a house in the town of Ahmedabad.
The appellants are the tenants of that house at a monthly rental of Rs. 2,171/ .
Under the agreement of lease the appellants were to pay out of the agreed rent Rs. 810/ per month, and the balance was to be appropriated towards a loan advanced by them to the respondent for constructing the house.
The appellants had also agreed to pay municipal taxes and electricity charges.
The appellants filed suit No. 1308 of 1963 in the Court of the Small Causes, Ahammadabad, for an order, inter alia, determining the standard rent of the premises in exercise of the power under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947.
The Court of Small Causes, Ahamadabad, on an application filed by the appellants fixed the contractual rent as "interim standard rent" and directed the appellants to pay the rent and municipal taxes.
Pursuant to this order, the appellants deposited Rs. 2,403/ as rent and Rs. 8,921.25 due as municipal taxes for the year 1964 65.
An application by the respondent to withdraw the amount deposited in Court was resisted by the appellants.
The Court permitted the respondent to withdraw Rs. 2,403/ but not the municipal taxes.
The respondent then obtained an order for the issue of a distress warrant under section 53 of the 15 of 1882 read with r. 5 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for recovery of the amount due as municipal taxes.
Distress was levied, and the order was confirmed.
A revision application moved in the High Court of Gujarat against that order was rejected.
In support of this appeal counsel for the appellants urges that r. 5 of the Rules framed under section 49 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government; that the Court of Small Causes Ahmedabad has in any event no jurisdiction to pass an order issuing a distress warrant when trying a suit or proceeding under Bombay Act 57 of 1947 especially when an application for determination of standard rent under section 1 1 of the Act is pending; and that the municipal taxes and electricity charges do not constitute rent which may be recovered by the issue of a distress warrant.
By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of 83 the rent it is not open to them to contend that they are not rent recoverable by the issue of a distress warrant.
The last branch of the argument has, therefore, no force.
The relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 and other statutes which have a bearing may first be noticed.
Bombay Act 57 of 1947 was intended to control rents and to confer protection against eviction upon tenants of premises in certain urban areas in the Province of Bombay.
By section 28 of the Act certain courts were designated as courts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant, relating to recovery of rent or possession to which the provisions of the Act applied, and also to decide claims or questions arising under the Act.
Section 28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, insofar as it is material reads : "(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or "proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay; (aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts, Act, 1887, such Court and (b).
shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.
Section 28 did not set up new Courts to try suits or proceedings between landlords and tenants : it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act.
Section 31 of the Act provides, inter alia, that the courts specified in section 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders 84 made by them.
Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders.
Pursuant to the authority conferred, rules were framed by the Government of Bombay and r. 5 which deal with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc.
provided insofar as it is material : "In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely (2) proceedings under Chapter VII and VIII of the , and (3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under section 9 of the said Act.
" By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat.
By the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960, cl.
(a) of sub section
(1) of section 28 of Bombay Act 57 of 1947 as it was originally enacted was deleted.
The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by section 17 provided that the (XV of 1882), shall extend to and come into force in the City of Ahmedabad on and from the appointed day.
By section 18 it was provided : "The (XV) of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom.
LVII of 1947), shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule.
" By section 19 it was provided : "With effect on and from the appointed day. the Provincial Small Cause Courts Act, 1887 (IX of 85 1887), and all rules, notifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, By the Schedule certain amendments were made in the , in its application to the City of Ahmedabad By cl. 13 of the Schedule, section 50 of the was to apply to every place within the City of Ahmedabad.
Certain amendments were also made in section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub section (1) of section 28, before cl.
(aa) the following clause was inserted : "(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad," By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in section 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.
Being a Court governed by the , the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Court may exercise.
Power to issue a distress warrant being expressly conferred by section 53 of the upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power.
Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by section 49 (2) (iii).
After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government of Bombay continued in force by virtue of section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court.
When r. 5 was framed under Bombay Act 57 of 1947 it was not ultra vires, and it is not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.
The argument that section 28 sets up a new set of Courts, with special powers and jurisdiction is without substance.
Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of matters relating to possession of premises and recovery of rent and to determine claims and questions arising under that Act.
On that account it does not become a Special Court : it is a court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it.
The Court of Small Causes at Ahmedabad had, 86 therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.
We are also unable to hold that so long as an application for fixation of standard rent is pending, the Court 's jurisdiction to issue a distress warrant remains suspended.
Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted.
Section II of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases in certain cases.
The Court is also competent to determine interim standard rent, and direct payment pending final determination of standard rent.
The appellants applied for fixation of standard rent and invited the Court to pass an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes.
In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810/ per month and also to deposit municipal taxes.
The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord.
The amount was on that account not available to the respondent.
The respondent was unable to pay the taxes and the Municipality threatened to attach the property.
The amount of municipal taxes was due and it was payable by the appellants.
Though deposited in Court, it could not be withdrawn by the respondent.
The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under section 53 of the by the respondent.
It was urged that the appellants had to pay the amount of interim standard rent twice over : once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant.
The landlord undoubtedly cannot obtain the amount twice over.
But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.
The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order.
In our judgment, there was no bar to the respondent maintaining the application for distress.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Jurisdiction to try suits and proceedings between landlords and tenants under the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 was by virtue of section 28 of the Act given to Small Cause Courts.
Under section 49 of the Act the State Government was authorised to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules among other subjects, for the procedure to be followed in trying or hearing suits and proceedings including proceedings for execution of decrees and distress warrants.
For these purposes the Government of Bombay under r. 5 framed by it provided that the procedure under the would be followed.
By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat.
The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by 17 extended the (15 of 1882) as well as the Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1947 to the City of Ahmedabad with suitable modifications and amendments.
Jurisdiction to try suits under the Bombay Act was by amendment of section 28 thereof given to the Court of Small Causes Ahmedabad.
The appellants were tenants of a house owned by the respondent in Ahmedabad.
Apart 'from the rent the appellants had also agreed to pay municipal taxes and electricity charges.
In 1963 the appellants filed a suit in the Court of Small Causes Ahmedabad for an order inter alia determining the standard rent of the premises in exercise of the power under section 11 of Bombay Act 57 of 1947.
The said court on an application filed by the appellants fixed the contractual rent as the 'interim standard rent ' and directed the appellants to pay rent and municipal taxes, which the appellants accordingly deposited in Court.
The Court permitted the respondent to withdraw the rent so deposited but not the municipal taxes.
The respondent then obtained an order for the issues of a distress warrant under section 53 of the Presidency Small Cause Court , Act 15 of 1882 read with r. 5 of the Rules framed under Bombay Act 57 of 1947 for recovery of the amount due as municipal taxes.
Distress was levied and the order was confirmed.
A revision application in the High Court of Gujarat was rejected.
In their appeal against the High Court 's order the appellants urged : (i) that r. 5 of the Rules 'framed under section 49 of the Bombay Act 57 of 1947 was ultra vires the State Government; (ii) that the Court of Small Causes Ahmedabad had no jurisdiction to pass an order issuing a distress warrant in a proceeding under Bombay Act 57 of 1947 especially 81 when an application under section 11 was pending; (iii) that the municipal taxes and electricity charges did not constitute rent which could be recovered by the issue of a distress warrant.
HELD: (i) Rule 5 was framed under Bombay Act 57 of 1947 in exercise of the authority conferred by section 49(2)(iii).
After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally 'framed by the Government continued in force by virtue of section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court.
When r. 5 was framed under Bombay Act 57 of 1947 it was not ultra vires and it was not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.
[85 F G] (ii) The distress warrant issued by the Court of Small Causes Ahmedabad against the appellant was within its powers.
By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in section 28 of Bombay Act 57 of 1947 it became a court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.
Being a court governed by the Presidency Small Causes Courts Act, the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Cause Court could exercise.
Power to issue a distress warrant being expressly conferred by section 53 of the upon the Courts governed by it, the Court of Small Causes Ahmedabad, was competent to exercise that power.
[85 D E] Section 28 does not make the Court of Small Causes trying suit under the Bombay Act a special Court : it is a court which is comptent to exercise all the powers conferred on it under the statute which governs it.
Its power to issue distress warrant could therefore be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.
[85 H] Pendency of an application for fixation of standard rent does not suspend the court 's power to issue distress warrant, for until standard rent is determined or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted.
In the present case the amount of municipal taxes was due and it was payable by the appellants.
Though deposited in Court it could not be withdrawn by the respondent.
The municipal taxes were therefore ill arrears and a distress warrant could be applied for under section 53 of the Presidency Small Cause Court by the respondent.
It was not necessary for the respondent to approach a higher court against the erroneous order of the Small Cause Court preventing him from recovering the amount of municipal taxes.
[86 B G] (iii) By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of the rent : it was not open to them to contend that these taxes and charger were not rent recoverable by the issue of a distress warrant.
[83 H 84 A]


judgement:
Appeal Nos. 429 and 430 of 1966 Appeals by special leave from the judgments and orders dated January 22, 1964 of the Calcutta High Court in Appeals Nos. 199 and 200 of 1962 from Original Order.
B.Sen and section P. Nayar, for the appellants (in both the appeals).
A.N. Sinha and D. N. Gupta, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment and decree of the High Court of Calcutta refusing to enter satisfaction of two decrees under O. 21 r. 2 of the Code of Civil Procedure obtained by the respondents against the Union of India in the following circumstances.
The respondents M/s Soorajmull Nagarmull imported spindle oil from Philadelphia.
The firm was required to pay Customs Duty under Item 27(3) of the First Schedule to the Tariff Act, 1934 at 27% ad valorem.
The firm filed two suits asking for refund of excess duty claiming that the oil was dutiable only under Item 27(8) at /2/6 per imperial gallon.
The suits were filed against the Collector of Customs, the Assistant Collector of Customs for Appraisement and the Union of India.
The suits were successful and decrees were passed against the Union of India for refund of the amount charged in excess.
In one suit the decree was for payment of Rs. 43,723/ with interest at 6% per annum from 1st day of April, 1952 until realisation.
In the second suit the decree was for Rs. 75,925/ with similar interest.
Since the firm had not paid a sum of Rs. 18,08,667.72 as tax the Income Tax Officer, Circle 11, Calcutta issued a notice under section 46(5a) of the Indian Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him and stating that his receipt would constitute a good and sufficient discharge of the liability for refund to the firm.
The Collector of Customs paid the amount into the Reserve Bank and the Reserve Bank issued receipts crediting the amount against Super 125 tax due from the firm.
The Collector of Customs then applied to the High Court of Calcutta under 0.
21 r. 2 of the Code of Civil Procedure for the adjustment of the decrees by this payment.
This was refused by a learned single Judge who gave no reasons while dismissing the petition.
On appeal to the Division Bench it was held by the Division Bench on January 22, 1964 that the adjustment of the decrees could not be granted.
It is against the last order that the present appeals have been filed by ,special leave of this Court.
The High Court in reaching the conclusion observed that the decrees were against the Union of India and not the Collector of Customs.
Further the sums were held by the Collector of Customs on behalf of the Union of India and not on behalf of the firm.
The High Court found the notice to be defective inasmuch as it asked for payment towards Income tax and towards penalty, while in the receipts which were granted to the firm, stated that the amount was for Super tax.
On these three grounds, the High Court held that the learned single Judge was right in dismissing the application of the Collector of Customs for the adjustment of the decrees.
Order 2 1, r. 2 of the Code of Civil Procedure takes note of payments out of court to decree holders and provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
It is also provided that the judgment debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified.
The contention of the respondents in these appeals is that the decrees were not passed against the Collector of Customs but against the Union of India and that payment by the, Collector of Customs was not a payment by the judgment debtor.
In our judgment this plea is highly technical.
The amount was recoved by the Collector of Customs from the firm and was being held by the Union of India through the Collector of Customs.
The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and it must be treated as a proper payment of the amount to the firm.
The objection of the respondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance.
It is also extremely technical.
The Union of India 126 operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm.
It is next contended that the notice is defective inasmuch as it shows that the money was lying with the Collector of Customs whereas it was, in fact, lying with the Union of India and that it was not money held by the Collector of Customs on behalf of the firm.
Section 46(5A) of the Income tax Act reads as follows : "46.
Mode and time of recovery.
(5A) The Income tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the asessee at his last address known to the Income tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (riot being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax payer in respect of arrears of income tax and penalty or the whole of the money when it is equall to or less than that amount.
Any person making any payment in compliance with a notice under this I sub section shall be deemed to have made the payment under the authority of the assessee and the receipt of the income tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.
Any person discharging any liability to the assessee after receipt of the notice referred to in this sub section shall be personally liable to the Income tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.
127 If the person to whom a notice under this sub section is sent fails to make payment in pursuance thereof to the Income tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income tax Officer 's notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub section (2) of section 46.
Such notices of the Income tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.
The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm.
A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the creditor.
By a parity of reasoning this amount, which was with the Collector of Customs, could be asked to be deposited with the Income tax Authorities under section 46(5A).
The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India.
It is contended lastly that the notice of the Income tax Officer spoke of Income tax and/or penalty whereas the amount was taken towards payment of Super tax due from the firm It is, however, conceded in the face of authorities cited at the Bar that the Super tax is also a kind of Income tax and, therefore, the notice could issue in the form it did.
The leading case on the subject is In re Beckitt(1) and learned counsel for the respondents did not controvert the proposition laid down there.
It is, however argued on the authority of Bidhoo Beebee vs Keshub Chunder Baboo and Ors., (2) Mahiganj Loan Office, Ltd. vs Behari Lal Chaki,(3) A. P. Bagchi vs Mrs. F. Morgan(4 ) and Thomas Skinder vs Ram Rachpal(5), that the payment which can be adjusted under O. 21, r. 2 is a voluntary payment by the judgment debtor to the decree holder and that this iS not a case of voluntary payment, at, all.
The rulings which have 'been cited do not, in our opinion, apply here.
This point was not considered in the High Court and seems to have been thought of here.
Order 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature (1) ; (2) (3) 1.
L. R. (4) A. 1.
R. 1935 All. 513.
(5) 1.
L. R. 1938 All.
128 lead to a voluntary payment and it is not to be thought that a garnishee, order does not lead to the adjustment of the decree sufficient for being certified by the Court.
Payment by virtue of section 46(5A), as we have stated before, is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
The rulings themselves do not control the present matter.
In the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment debtor.
Contrasting what had happened in the case with the words of the second rule of 0. 21 (then section 206 of the Code of 1859) the learned Judges observed that section 206 covers cases of voluntary payment.
The debtor was protected by treating the payment as being made through the court.
The exact point we are dealing with was not before the Court.
In I.L.R. there was a scheme framed by the depositors of a banking Company for return of their deposits in spite of opposition from decree holders depositor of the Company.
The scheme was sanctioned by the Court.
The scheme was binding on the decree holder but it was not treated as an adjustment within O. 21, r. 2 of the Code of Civil Procedure.
The reason given was that the adjustment must be to the satisfaction of the decree holder and must be with the consent of both the decree holder and the judgment debtor and not one which is made binding by operation of law.
It is to be noticed that that was a payment to which the judgment debtor had objected although it was binding on him.
We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid.
No reasons are given in the judgment why such a distinction should be made.
In I.L.R. [1938] An. 294 the payment was made in court and not outside court.
This ' is the nearest case to the present one and but for this difference, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken.
The reason given by the learned judges brings out the real object of the rule : "where a judgment debtor makes payment outside the Court, the Court knows nothing about the payment ' and therefore r. 2, 0.
21 ordains that the parties should inform the Court about the payment.
" This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court.
In the case cited the Court knew of the payment and could give protection in other ways.
In A.I.R. 1935 All.
513 the payment was again without the consent of the Judgment debtor either in fact or in law.
Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence 129 of the rule.
The case turned on whether there was any understanding and too little on payment out of court which is the essence debtor on repairs would be set off against the decretal amount and therefore O. 21, r. 2 of the Code of Civil Procedure was held inapplicable.
In none of the cases the point of a garnishee order was considered.
In our opinion, a case of a garnishee payment or one made under section 46(5A) of the Income tax Act of 1922 stands on a different footing and if the payment has been legally made out of Court in full and final discharge of the liability under a decree, there is no reason why the judgment debtor cannot move the Court for getting the adjustment or payment certified, The payment was required to be certified under O. 21, r. 2 of the Code of Civil Procedure and we order that it be so certified.
The appeals are accordingly allowed with costs here and in the High Court.
R.K.P.S. Appeals allowed.

summary/full:
The respondent filed suits against the Collector of Customs and the Union of India claiming refund of excess customs duty levied on spindle oil imported into India.
The trial court granted decrees against the Union of India for the amounts charged in excess.
As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him.
The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super tax due from the respondent.
He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment of the decree by this amount.
This was refused by a single Judge as well as in appeal by a division bench.
It was held that the decrees were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor.
Furthermore the amounts were held by the Collector on behalf of the Union of India and not on behalf of the Firm.
The High Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty, while the receipts which were granted to the Firm stated that the amount paid was against super tax due.
On appeal to this Court, HELD : The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered the amount and held it from the respondent.
Collector paid the amount on behalf of the Union of India.
[126 A] A notice under section 46(5A) is no more than a kind of garnishee order issued to the person holding money and the money is due to an assessee.
The amount which was held.
by the Collector of Customs could properly be asked to be deposited with the income tax authorities under section 46(5A).
[127 B D] Super tax is also a kind of income tax and therefore, the notice could issue in the form it did.
There was no force in the contention that the amount, which could be adjusted under O. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary payment at all.
Order No. 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree 124 sufficient for being certified by the Court.
Payment by virtue of section 46(5A) is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
[127 G 128 B] In re Beckitt, [1933].T.R. 1, Bidhoo Beebee vs Keshub Chunder Baboo & Ors. , Mahiganj Loan Office Ltd. vs Behari Lal Chaki, I.L.R. , A. P. Bagchi vs Mrs. F. Morgan A.I.R. 1935, AU 513, Thomas Skinner vs Ram Rachpal I.L.R. [1938] All 294, distinguished.