1965 PLP 428 (PTD)

Md. Nurul Huda, K. H. Rashid and KK.M. Subhan for Respondents Nos. 1-3 (in Petition No. 377 of 1964) and for Respondents Nos. 1 and 2 (in Petition No. 389 of 1964). Dates of hearing: 23rd, 24th November and 12th December 1964. SIKANDAR ALI, J.--These three petitions under Article 98 of the Constitution by Messrs Chittagong Engineering and Electric Supply Co. Ltd., being Petitions Nos. 339 of 1953 and 377 and 389 of 1964, have been heard together and are disposed of by this judgment. By the first-mentioned petition the petitioner calls in question the certificates filed under section 6 of the Public Demands Recovery Act by the Certificate Officer, Dacca, for income-tax demands relating to the assessment years 1951-52 and 1950-51 in Certificate Cases Nos. 228 I. T./1954-55 and 229 I. T./1954-55 corresponding to O. D. Cases Nos. 5 and 6 of 1962-63 of the Certificate Officer, Rangpur, as well as the sale held in execution of those certificates. Writ Petition No. 389 also aims at the same relief with respect to Case No. 229 of I. T. of 1954-55, the only additional feature being that the assessment of the income-taxes in question also has been challenged as being illegal and void. Similarly the subject matter of challenge in Writ Petition No. 377 of 1964 is the assessment for the year 1952-53 together with the certificate based thereon and the notice issued under section 46 (5-A) of the Income-tax Act, which are sought to be declared as having been made, filed and issued without lawful authority and as such being of no legal effect. The material facts, which are mostly matters of records, may be briefly stated as follows:- On the requisition of the respondent Income-tax Officer the Certificate Officer, Dacca, filed four separate certificates, being Nos. 228/53-54, 229/54-55, 230/54-55 and 49/59/60 and caused service of the notices under section 7 of the Public Demands Recovery Act upon the petitioner-company in respect of the first mentioned two on 7-5-55. The petitioner-company thereafter entered appearance and filed written objections under section 9 of the said Act denying liability in each of these two cases on 2-8-55. The Certificate Officer then forwarded copies of these objections to the certificate-holder, i.e., the respondent Income-tax Officer, for reply, To this after repeated adjournments and reminders the latter responded for the first time on 25-2-57 with a request that the cases might be kept pending till the amount of compensation due to the assessee-company i.e., the petitioner for some of its electrical undertakings taken over by the Government of East Pakistan was finalised by the C. L. and

1. Department. That was followed by another period of no action till the Certificate Officer at the instance of the certificate holder by his order dated 2-12-58 asked for information from the C. L. and I. Department as to whether the amount of the said compensation had been assessed. There was however little or no progress till 5-4-63 when on receipt of a D. O. letter from the Government in C. L. and I. Department the Certificate Officer, Dacca, sent the certificates to his counter-part at Rangpur. The latter thereafter appears to have proceeded with the certificates, registered as O. D. Cases Nos. 5, 6 and 8 of 1962-63 of his file and taken steps to recover the dues whereon the petitioner company filed on 21-5-63 a petition before the Certificate Officer, Rangpur, objecting to the sale on the ground that the certificates in question were void and without jurisdiction. From the order dated 28-5-63 passed by the Certificate Officer, Dacca, it appears that the Certificate Officer, Rangpur, sent him intimation of the objection preferred by the petitioner-company and lie thereon requested the latter to forward a copy of the same to him. On receipt of the copy thereafter he called for a report from the respondent Income-tax Officer on the points raised therein (vide order dated 27-6-63) but in the meantime, i.e. while the Certificate Officer, Dacca was awaiting receipt of the copy of the objection petition, the Certificate Officer, Rangpur, put up the petitioner-company's electrical undertaking at Rangpur to auction at which on 15-6-63 the respondent No. 3 in Petition No. 339 purchased the same in one lot for the consolidated amount due under all the four certificates aggregating a sum of Rs. 1,21,

000. This was done on rejection of, yet another petition filed by the petitioner company on that date raising objection that the sale could not be held for an unascertained amount, as explained in the petition. The petitioner-company was thus forced to prefer an appeal under section 23 before the Certificate Officer, Dacca, in whose office the original certificates had been filed for setting aside the sale on the ground inter alia that the same having been held without disposing o f the objections filed under section 9 contravened the mandatory provision of section 13 and was therefore without jurisdiction. The Certificate Officer, Dacca, thereon passed the following order:- "Heard lawyer. Put up with the case records. Stay confirmation of sale till 29-8-63." Upon production of a copy of the order along with a copy of the application under section 23 before the Officer who was holding charge in the absence of the Certificate Officer, Rangpur, on leave, the petitioner was told that no action would be taken till the latter resumed duties on the expiry of his leave. Apprehending however that confirmation of the sale might not be stayed, the petitioner Co. approached this Court under Article 98 of the Constitution. Petition No. 389 is also directed against one of the cases challenged in Petition No. 339, to wit Certificate No. 229 I. T.-54-55 for a demand of Rs. 38,

873. It has been further alleged therein that originally the petitioner-Co's. total tax liability inclusive of super-tax for the year 1950-51 was assessed at Rs. 86,967 but subsequently the respondent Income-tax Officer re-opened the proceedings under section 34 of the Income-tax Act and revised the said assessment on the ground that the Service fee of Rs. 67,700 had been wrongly deducted therein. As a result of this revision the total tax liability was found to stand at Rs. 1,00,667 which after deducting the payment already made left the aforementioned amount of the certificate i.e., Rs. 38,873 as the outstanding balance payable by the petitioner-Co., as per demand notice served upon the petitioner-Co. on 31-7-53. On appeal however, the Appellate Assistant Commissioner exempted the service fees from tax liability by his decision dated 28-4-57 running as follows:- "I hold that service fees received by the appellant were capital receipts and not revenue receipts. The amounts included in the assessments for 1950-51 and 1951-52 on account of receipts from service fees should therefore be excluded from the assessments." In obedience to the above the Income-tax Officer on 31-12-57 revised the assessment for 1950-51 by excluding the service fee from the total income as a result of which the total demand stood at Rs.

792. Again the petitioner-Co. had to pay a sum of Rs. 43,196 for increased cost of energy purchased by it during the accounting year 1949-50 from the East Bengal Railway Authority in pursuance of a notice served by the latter notifying such increased cost of generation on 6-11-50 and accordingly claimed the entire amount as debitable to the accounting year 1950-51 but the respondent Income-tax Officer rejected this claim on the ground that the same related to the expenses for the earlier year. The same view appears to have been taken thereafter by the Appellate Assistant Commissioner and the Income-tax Tribunal as well though the latter in its order made the following observations:- " . . . . . However that may be the Income-tax Officer found that out of this amount a sum of Rs. 34,742 related to the relevant accounting year 1950-51 and accordingly allowed the assessee's claim to this extent. The balance of Rs. 43,196 admittedly to the accounting year 1949-50 and although the assessee knew about the demand after it had closed the accounts for 1949-50, the charge was made known to the assessee on the 6th of November 1950, that is to say, long before the assessment from 1950-51 was completed. As the amount in question does not relate to the account year under appeal the assessee's claim must fail. It however appears that the steps have since been taken to re-open the assessment for 1950-51 by initiating proceedings under section

34. The Departmental Representative has no objection to the assessee preferring a claim to the amount in dispute in connection with the assessment for 1950-51. If however there be any legal hitch, we have no doubt that the revenue authorities will by an executive order undo the mischief by allowing the expenses which constituted a legitimate charge in connection with the assessment year 1950-51." The petitioner-Company thereon approached the respondent Income-tax Officer for giving effect to the above but the latter regretted that he was not competent to do so on the ground that the assessment for 1950-51 had since been completed. The Commissioner of Income-tax was then moved in revision and he by his order dated 28-12-55 directed the Income-tax Officer to allow the amount as legitimate trade expense for the relevant year and revise the assessment in question accordingly. In the meantime i.e. on 30-3-55 the Income-tax Officer had caused a certificate to be filed for a demand of Rs. 38,873 and that together with some claims eventually culminated in the auction sale held on 15-6-63, as already stated above. It is said that had the Income-tax Officer given effect to the order of the Commissioner referred to above, there would have been nothing due for 1950-51 at all from the petitioner-Company, which would on the other hand have been entitled to refund of a substantial sum out of the amount already paid by it. In Petition No. 377, which is directed against the assessment for the assessment year 1952-53, i.e. the certificate filed in Case No. 230 I. T. of 1954-55, the case made by the petitioner is that in assessing the tax liability of the petitioner-company for the said year at Rs. 2,61,805 the respondent income-tax Officer did not deduct from the taxable income the service fee of Rs. 1,04,051 which is a capital receipt and after deducting therefrom the amount already paid caused the above-mentioned certificate to be filed for the balance of Rs. 1,68,024 during the pendency of the appeal preferred before the Appellate Assistant Commissioner against his assessment. On service of notice under section 7 in connection with that certificate the petitioner-company filed on 4-6-55 written objection under section 9 denying liability and challenging the legality of the demand on the score of inclusion of the service fee in the taxable income. The petitioner company also moved the different Authorities of the Income-tax Department variously but to no purpose. Ultimately the Certificate Officer, Dacca, by his order dated 3-11-55 rejected the aforesaid objection filed under section 9 and the application filed under section 53 for revision of that order also proved abortive. Thereafter on 24-8-57 the Appellate Assistant Commissioner disposed of the appeal preferred before him holding that the amount included in the assessment on account of receipt from service fees should be excluded had directed the Income-tax Officer to revise the assessment accordingly. The latter however, did not give effect to that order and proceeding instead with the certificate cases on the basis of the original demands caused the assets of the petitioner-Company to be sold on 15-6-63 as already stated above. Even after that the respondent Income-tax Officer issued on 14-7-64 another notice under section 46 (5-A) for realisation of the tax dues of Rs. 1,68,024 for 1952-53. In those premises the petitioner Company impeaches the Certificate (No. 230 I. T./1954-55) as well as the said notice under section 56 (5-A) as illegal and void on the grounds that the order of the Appellate Assistant Commissioner has not been given effect to and that the liability has not been legally determined. Three separate affidavits-in-opposition have been filed in Petition No. 339, one on behalf of the respondent Income-tax Officer (respondent No. 4), the second on behalf of the Certificate Officers, Dacca and Rangpur (Respondents Nos. 1 and 2), and the third on behalf of the E. P. WAPDA (respondent No. 3). In the affidavit on behalf of the Certificate Officers, which has been affirmed by Mr. A. B. M. A. Aziz, the then Joint Deputy Commissioner, Rangpur, it has been asserted that the petitions filed by the petitioner Company on 4-6-55 in Certificate Cases Nos. 228 and 229 could not be said to come within the provision of section 9 inasmuch as the liabilities were rot denied and there were prayers for adjustment of the dues against the alleged dues of the Provincial Government to the petitioner. It is further said that this is also shown by its petition dated 18-11-55 admitting the liabilities and praying for adjustment of the same against the amount due to the Company from the Government. Reference has then been made to the difficulty felt by the Government in acceding to the prayer of the certificate holder i.e. the respondent Income-tax Officer, for adjusting the petitioner-company's liabilities against the income-tax payable by one of its Directors viz. Mr. K. K. Sen, in his personal capacity and it has also been pointed out that the objection under section 9 filed in Certificate Case No. 49/1959-60 beyond the statutory period was rejected by the Certificate Officer and the appeal preferred against it also was dismissed for non-prosecution. The deponent has then stated that on receipt of a telegram from the learned counsel of the petitioner the Certificate Officer, Rangpur, wrongly stayed the proceedings before him under intimation to the Certificate Officer, Dacca, but that was later vacated by the learned Additional Deputy Commissioner in revision under section 53 and in this view of the matter the order of the Certificate Officer, Dacca, dated 28-5-63 asking for a copy of the objection filed under section 9 before the Certificate Officer Rangpur, was invalid and without jurisdiction. Further contention of the deponent in this connection is that the petition filed on the date of the sale i.e. 15-6-53 objecting to the sale had no legal sanction as it did not come under any provision of the Public Demands Recovery Act and as such the Certificate Officer, Rangpur, rightly rejected the same and held the sale as he did. Similarly the other averments made by the petitioner-company in its affidavit have been traversed after pointing out that the sale was duly confirmed on 15-8-63. It has been finally asserted that the certificates were executed in accordance with the law and the proceedings were legal, valid and bona fide. According to the respondent Income-tax Officer, most of the allegations averred in the petitioner-Company's affidavit are matters of record relating to the certificate proceedings on which he has no comment to make. As to the demands that led to the impugned sale, he has, however, asserted that requisitions for realisations of the outstanding Government revenue by way of income tax for the assessment years in question had been issued by the then Income-tax Officer, Companies Circle IV as in spite of demands the petitioner did not pay a single farthing towards the satisfaction of those dues and as such it is not correct to say that the action of the Certificate Officer in those circumstances was without jurisdiction or without any lawful authority. The affidavit-in-opposition filed on behalf of the Auction Purchaser i.e., the respondent No. 3 representing the E. P. WAPDA is more or less a traverse of averments made in the affidavit of the petitioner-company coupled with the contention that the E. P. WAPDA is a bona fide purchaser whose interest cannot be affected in any view of the matter. The other two cases also are resisted by the respective respondents therein i. e., the Income-tax Officer and the Certificate Officer, Dacca in Petition No. 389 and the Deputy Commissioner, Rajshahi in addition to the said two officers in Petition No. 377 and in each of them the affidavit-in-opposition has been affirmed by the respondent Income-tax Officer. In relation to the demand and proceedings challenged in the former he has admitted that through oversight the revisional order could not be given effect to adding, however, that the assessment has since been revised and the refundable amount adjusted against the assessment year 1960-61. In reply to this the petitioner-company has pointed out by this revision made on 17-9-64 in respect of the assessment order for 1950-51 a sum of Rs. 23,506 was determined to be refundable and that in view of this revised assessment the Certificate Case No. 229/I. T/54-55 ceased to have any basis and as such the sale held in pursuance thereof is illegal and liable to be set aside. As to Petition No. 377 the affidavit in-opposition recites inter alia that due to a misreading of the assessment order for 1952-53 as well as the order passed in the appeal preferred against the same, it was presumed through mistake that the service fees were not included in the income assessed till the position became clear on receipt of the detailed notice demanding justice but before the correction could be made on collection of all the relevant papers, the petitioner-company had moved this Court under Article

98. It has then been stated that the demand in question as well as the notice under section 46 (5-A) has since been revised and the petitioner-company accordingly can have no further cause for grievance. Mr. Hamidul Haq Chowdhury, appearing on behalf of the petitioner-company has taken just one short point in impeachment of the sale held in executing of Certificates Nos. 228 and 229 and it is that the said sale having -been held in contravention of the mandatory provision of section 13 is a nullity. In amplifying the contention he has pointed out that in respect of both the Certificates Nos. 228 and 229 which were filed on 30-3-55 by the Certificate Officer, Dacca, notices under section 7 were served on his clients on 7-5-55 and the latter thereon filed separate written objections denying its liability on 2-8-55 but the impugned sale was eventually held on 15-6-63 without disposing of those petitions as enjoined under section

13. In this connection, learned Advocate has involved our attention to certain sections of the Public Demands Recovery Act. A Certificate Officer is authorised on receipt of a proper requisition to file a certificate under section 4 or 6 according as the demand is due to the Collector or to a person other than the Collector. Duty of the Certificate Officer on the filing of a Certificate is enjoined under section 7 which provides "When a certificate has been filed in the office of a Certificate Officer under section 4 or section 6, he shall cause to be served upon the Certificate debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate." Section 8 deals with the effect of this service while the next following section, i.e. Section 9, provides opportunity to the person affected thereby to object to the certificate denying liability. Subsection (1) of this section is couched in these terms :- "(1) The Certificate debtor may, within thirty days from the service of the notice required by section 7 or, where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed, or to the Certificate-Officer who is executing the certificate, a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part." The provisions as to the obligations and powers of the Certificate Officer in relation to an objection petition filed under this section are to be found in section 10 which reads "The Certificate Officer in whose office the original certificate is filed shall hear the petition, take evidence (if necessary), and determine whether the Certificate debtor is liable for the whole or any part of the amount for which the certificate was signed. ; and may set aside, modify or vary the certificate accordingly: Provided that, if the Certificate Officer is not the Collector, and considers that the petition involves a bona fide claim of right to property, he shall refer the petition to the Collector for orders ; and the Collector, if he is satisfied that a bona fide claim of right to property is involved, shall make an order cancelling the certificate." It is next provided in section 13 that no step in execution of a certificate shall be taken, when a petition has been duly filed under section 9, until such petition has been heard and determined. We have already referred to the objection petitions filed on 2-8-55. These were preferred within the prescribed period before the Certificate Officer, Dacca who thereon forwarded copies thereof to the Certificate Holder, i.e. the respondent Income-tax Officer, for reply. As has already been set out in sufficient details herein before, no notice appears to have been taken of the objection of the petitioner-company questioning the liability and the proceedings dragged on indefinitely with reference to its prayer for adjustment against the amount of compensation said to be due from Government till 5-4-63 when at the instance of the Government in the C. L. '& I. Deptt. the Certificate were sent to the Certificate Officer, Rangpur under section 12 (1) who thereafter proceeded to sell the petitioner-company's undertaking, The petitioner-company thereon filed a petition on 21-5-63 before the Certificate Officer, Rangpur as well objecting to the proposed sale on the ground that the certificates were void and without jurisdiction. The Certificate Officer, Rangpur then stayed the proceedings and sent intimation of the objections to the Certificate Officer, Dacca, who in turn asked for a copy of the objections from the former. This was apparently done in consonance with section 9 (2) which lays down: "If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal." It is true that the Certificate Officer to whom a certificate is sent under section 12 (2) has under section 37 all the powers of the Certificate Officer who filed the certificate under section 4 or 6 and may decide all questions arising between Certificate-holder and Certificate-debtor relating to the making, execution, satisfaction and discharge of the certificate. This is however, subject to one statutory exception as embodied in section 9 (2) which has already been cited above. In this view of the matter it is indeed difficult to justify the order of the Additional Deputy Commissioner, Rangpur, purporting to set aside in exercise of his revisional power under section 53 the aforesaid order of the Certificate Officer, Rangpur while the objections filed by the petitioner-company were still awaiting consideration and decision of the Certificate Officer, Dacca. It appears that copies of the objections were in fact sent to the Certificate Officer, Dacca and on receipt of the same he on 27-6-63 called for a report from the Requisition Officer f. e., the respondent Income-tax Officer, on the points raised therein but before that the impugned sale had already been held on 15-6-63 pursuant to the aforesaid order passed by the Additional Deputy Commissioner vacating the order of stay recorded by the Certificate Officer, Rangpur. No matter whatever might have been the circumstances under which the sale was held, there appears to be no escape from one fact and it is that the sale took place while the objection petitions tiled by the petitioner-company on 2-8-55 before the Certificate Officer, Dacca and later repeated on 21-5 63 before the Certificate Officer, Rangpur remained un-disposed of. It has accordingly been argued that the impugned sale held without having previously disposed of the said petitions under section 9 is a nullity inasmuch as it contravened the mandatory provision of section

13. Mr. Khandker, appearing on behalf of the auction purchaser in Petition No. 339, his client not being a patty to either of the other two cases, has tried to counter the above argument by raising a number of contentions, the first of which is that the petitions relied upon by the petitioner company in this behalf i.e., the one dated 2-8-55 filed before the Certificate Officer, Dacca, and the other dated 21-5-63 filed before the Certificate Officer, Rangpur, were not in substance petitions denying liability and could not therefore attract the provisions of section 9 or section

13. We have looked into the petitions and may quote here from the one dated 2-8-55 the following :- "That the income-tax was duly paid and proceeding closed and it was re-opened under section 34 illegally with a view to tax service fee which is not taxable and the liability is denied by the Certificate-debtor and submits that the certificate being illegal and not maintainable it cannot be executed." To us the petitioner-company appears to have clearly challenged the liability though it has also prayed later on for adjustment against its dues owing from Government. In this connection it is well worth bearing in mind that under section 9 (1) a certificate debtor is free to deny his liability in part as well and in this view of the matter the petitioner-company may be said to have been rightly advised to make the said prayer for adjustment as it could not be sure whether any amount would or would not be found due from it on a proper assessment in accordance with the law. It may as well be pointed out here that at least in respect of one of the two certificates under consideration, i. e., Certificate No. 229, the petitioner-company, far from owing anything on account of that demand, was actually found entitled to refund of a substantial sum out of the amount already paid and such refund appears also to have since been made. The next contention urged by Mr. Khandkar is that even if the aforesaid petitions were held to come under section 9 (1) and thus to attract the operation of section 13, failure of the Certificate Officer to comply with the requirement of that section before holding the sale amounted to a mere irregularity, which might at the highest render the sale voidable and not void so that the petitioner-company's remedy, if any, lay in an application to set aside the sale under section

23. The precise point sought to be driven at is that in view of the specific remedy available under the relevant statute and the same not having been availed of, Article 98 of the Constitution can have no application. In support of his contention learned Advocate has cited the case or Tasadduk Rasul Khan v. Ahmad Husain and another (I L R 21 Cal. 66) and Roshan Lal Prithi Mal v. Shanti Lal and others (A I R 1933 Lah. 186) but these deal with non-observance of provisions bearing on the publication and conduct of the sale and do not thus touch the point we are concerned with in the present instance viz. jurisdiction of the Court to proceed with the execution case and hold the impugned sale. Reliance was also placed upon the case of Ram Padarath Mahto v. Mishri Sinha and another (AIR 1961 SC 480) to support the argument that the word `shall' occurring in section 13 has been used in the sense of `may' but neither the context nor the intention of the provision, we are afraid, can be said to demand that interpretation. In our view the said word has been used in its ordinary sense or in other words the provision of section 13 is mandatory and subject to the proviso thereto a Certificate Officer has no jurisdiction to proceed with the execution of a certificate until and unless he has disposed of the objection, if any, filed under section

9. We fail to see how, as has been argued by Mr. Khandkar, the proviso to section 10 can be said to indicate that violation of the prohibition contained in that section like non-service of notice under section 7 does not render the sale void. It is interesting to note that a sale held without service of notice under section 7 also was by general consensus held to be a nullity till the Legislature expressly provided to the contrary under section

36. For the purpose of analogical application Mr. Khandkar also tried to put forward that a sale is not rendered void even for non-service of notice under Order XXI, rule 22 but this does not appear to receive support from decisions cited by him A I R 1930 Cal. 348 and A I R 1928 All.

74. On the other hand it is well-settled that non-service of the said process affects the jurisdiction of the Court and renders proceeding including the sale held therein void. It has then been contended by Mr. Khandkar that the above-mentioned petitions purported to be under section 9 were not verified as required and could not therefore be regarded as valid petitions under the said section at all. It is no doubt necessary to verify such petitions but an omission or failure to do so is a formal defect, which does not affect the merits of the case. In this view of the matter the petitions in question in spite of the said defect could not be ignored and the most that the Certificate Officer could do was to call upon the petitioner to remove the defect. Syed Mohiuddin and others v. Pirthichand Lal Chowdhury (19 C W N 1159). This contention has therefore no force. It has lastly been argued that in any case the interest acquired by a bona fide auction purchaser, who was not a party to the proceedings, cannot be affected and reliance has been placed in this behalf upon the cases of Zain-Ul-Abdin Khan v Muhammad Asghar Ali Khan and others (I L R? 10 All. 166) and Piarilal v. Hanijun-Nissa Bibi and another (I L R? 38 All, 240). These however relate to cases in which the Court concerned had jurisdiction to hold the sales and the sales were good and valid at time they were held and are thus distinguishable from the instant case where the Court lacked the jurisdiction to proceed with the execution and sale is therefore void ab initio. A void sale is at all (sic) in the eye of law and in this view of the matter we must reject this contention as well. Finally it may be pointed out that the impugned sale was held not for the amount, due under any of the 4 certificates ink question in particular but for the total sum due on account or all the four certificates consolidated together, for which too wed fail to find any sanction either in the provisions of the; Public Demands Recovery Act or in the Rules framed thereunder. Having thus considered all the relevant facts as well as the contentions urged on behalf of the respective parties we feel that the impugned sale must be declared to have been held without lawful authority in terms of the Rule in Petition No.

339. Mr. Hamidul Huq Chowdhury has submitted that in case the petitioner-company succeeds in having the impugned sale declared unlawful as prayed for in Petition No. 339, that will serve his client's purpose and in that view of the matter did not advance any argument with respect to the prayers made in the other two cases. It may also be pointed out that the Auction Purchaser is not a party to either of these two cases and though prayer for declaring the sale void has been made in Petition No. 389, that has not in fact been made in Petition No.

377. Regard being had to these the Rules in these two cases, i.e. Petitions No. 377 and 389, have to be discharged and we discharge the same accordingly. In view however of the conclusions reached by us hereinbefore, the petitioner-company is entitled to succeed in Petition No.

339. The Rule in Petition No. 339 is accordingly made absolute and the impugned sale in execution of Certificates Nos. 228 I. T./1954-55 and 229/I. T./1954-55 is declared to have been held without lawful authority and as such is of no legal effect. Regard being had to the circumstances, we leave the parties to bear their own costs. A. SATTAR, J.-I agree. A. H.??? ??????????????????????????????????????????????????????????? ??????????????????????????????????? Order accordingly.