Benami property recovery under tax arrears may proceed as civil decree execution, but the revenue recovery act alone is insufficient.

The Madras High Court noted that the Madras Revenue Recovery Act, by itself, authorises attachment and sale only of the defaulter's own land and does not permit the Collector to attach property standing in another person's name merely on an allegation of benami ownership. It further explained that the proviso to section 46(2) of the Indian Income-tax Act, 1922 gives the Collector powers akin to execution of a civil decree, including proceeding against property held in the name of an ostensible owner where the Revenue claims it ly belongs to the assessee. In that situation, the claimant must pursue execution remedies, with the possibility of a subsequent suit.

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Issues: (i) Whether property standing in the name of a person other than the income-tax defaulter could be attached and sold under the Madras Revenue Recovery Act for recovery of the defaulter's arrears. (ii) Whether, by virtue of the proviso to section 46(2) of the Indian Income-tax Act, 1922, the Collector could proceed against ostensible ownership as in execution of a civil decree and leave the claimant to the remedies available in execution.

Issue (i): Whether property standing in the name of a person other than the income-tax defaulter could be attached and sold under the Madras Revenue Recovery Act for recovery of the defaulter's arrears.

Analysis: The recovery machinery under the Madras Revenue Recovery Act authorises attachment and sale of the defaulter's land. The statutory scheme treats the "defaulter" as the person against whom revenue recovery is directed, and the Act does not itself confer power to attach land merely because it is alleged to be benami when it stands in another's name. The Collector, acting only under that Act, cannot ignore the registered title and proceed against property not shown as the defaulter's own land.

Conclusion: The power under the Madras Revenue Recovery Act alone was insufficient to attach and sell the petitioner's property.

Issue (ii): Whether, by virtue of the proviso to section 46(2) of the Indian Income-tax Act, 1922, the Collector could proceed against ostensible ownership as in execution of a civil decree and leave the claimant to the remedies available in execution.

Analysis: The proviso to section 46(2) clothes the Collector with the powers of a civil court for recovery of an amount due under a decree. Those powers permit him to attach property standing in the name of an ostensible owner if the Revenue asserts that it really belongs to the assessee. In such a case, the ostensible owner may invoke the execution remedies available under the Civil Procedure Code, and the resulting claim must be summarily determined, with a further right of suit to the unsuccessful party. The availability of a civil suit does not by itself bar recourse to article 226, but the existence of the additional statutory power prevented the issue of a writ forbidding the attachment.

Conclusion: The Collector could proceed under the additional powers conferred by the proviso to section 46(2), and the petitioner's remedy was to raise the appropriate execution claim.

Final Conclusion: The petition did not succeed because, although the Madras Revenue Recovery Act by itself did not authorise attachment of property standing in another's name, the proviso to section 46(2) supplied the necessary recovery power and preserved the claimant's execution remedies.

Ratio Decidendi: A revenue authority recovering income-tax arrears may, under the proviso to section 46(2) of the Indian Income-tax Act, 1922, proceed against property alleged to be benami and standing in another's name as if executing a civil decree, but the Revenue Recovery Act alone does not authorise attachment of property not registered in the defaulter's name.

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