Attachment under State recovery law does not become civil execution; declaration suits against such attachments follow declaration-suit limitation.

Attachment of immovable property effected for recovery of certified income-tax as arrears of land revenue under a State statute derives from that State statute, and the Collector's powers under the proviso to the income-tax provision are ancillary civil powers that do not convert recovery into execution under the Code of Civil Procedure; therefore a third party's application to the Collector is not an objection under Order 21, rule 58 and does not invoke Order 21, rule 63 limitation. Consequently a suit by a third party for declaration of title is governed by the Limitation Act provision for declaration suits and was not time-barred.

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Issues: (i) Whether the Collector's order rejecting the plaintiffs' application to release immovable property attached for recovery of income-tax dues was an order under Order 21, rule 58, Civil Procedure Code such that the plaintiffs' suit would be governed by Order 21, rule 63 and the six months limitation period; and (ii) Whether the plaintiffs' suit for declaration was barred by limitation.

Issue (i): Whether the attachment and the Collector's order fall within the scope of Order 21, rule 58, Civil Procedure Code, thereby making the remedy under Order 21, rule 63 the exclusive or primary route.

Analysis: The Collector proceeded under the statutory scheme for recovery of arrears of land revenue as provided by the U.P. Zamindari Abolition and Land Reforms Act, specifically clause (f) of section 279, and the recovery was to be effected as arrears of land revenue under the State law. The proviso to section 46(2) of the Income-tax Act confers ancillary civil court powers on the Collector to make recovery effective but does not convert the recovery into an execution of a civil court decree under the Code of Civil Procedure. A rule referring to the mode of attachment in Order 21, rule 54, is a reference for convenience to prescribe mode and does not change the source of the Collector's power from the Abolition Act to the Code. Consequently, an application by a third party to the Collector in these circumstances is not, in law, an objection under Order 21, rule 58, of the Code and the Collector's rejection on the ground of non-entertainability does not constitute an adjudication under Order 21, rule 58 that would invoke Order 21, rule 63 remedies and limitation.

Conclusion: The Collector's order and the attachment effected under the U.P. Zamindari Abolition and Land Reforms Act are not to be treated as proceedings under Order 21, rule 58, Civil Procedure Code; therefore the plaintiffs' remedy was not confined to Order 21, rule 63.

Issue (ii): Whether the plaintiffs' suit for a declaration that the attached houses were not liable to sale was governed by Article 11 (six months) of the Limitation Act or by Article 120 of the Limitation Act, 1908.

Analysis: Because the attachment and the Collector's order did not amount to an order under Order 21, rule 58, the suit is not a proceeding ancillary to execution and is properly characterised as a suit for declaration of title to immovable property. Declaration suits of that character are governed by Article 120 of the Limitation Act, 1908. The proceedings before the Collector, including a refusal to entertain the applicants' claim, did not operate to convert the plaintiffs' remedy into an execution objection requiring invocation of the shorter limitation period applicable under Order 21 procedures.

Conclusion: The plaintiffs' suit for declaration is governed by Article 120 of the Limitation Act, 1908 and was not barred by limitation.

Final Conclusion: The appeal is allowed; the remand order is set aside and the plaintiffs' suit for declaration is decreed, with costs.

Ratio Decidendi: Where recovery of certified income-tax is effected as arrears of land revenue under a State statute, the Collector's power to attach immovable property derives from that State statute and not from the Code of Civil Procedure, and the proviso to section 46(2) of the Income-tax Act confers ancillary civil court powers without transforming the recovery into execution of a civil court decree; accordingly a third party's declaration suit is governed by the Limitation Act provision applicable to declaration suits.

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