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Issues: Whether the expression "decree for the payment of money" in rule 16(1) of Schedule II of the Income-tax Act, 1961 includes a decree for sale in enforcement of a mortgage under Order XXXIV, Rule 5 of the Code of Civil Procedure, 1908.
Analysis: Section 222 of the Income-tax Act, 1961 provides the machinery for recovery of arrears through the Second Schedule, which is procedural in nature. Rule 16(1) of Schedule II must therefore be strictly construed and cannot be extended so as to override the vested rights of a mortgagee or secured creditor in the mortgaged property. The expression "decree for the payment of money" in the rule is contrasted with a simple money decree under the Code of Civil Procedure, 1908, which is immediately executable and may be enforced by the various modes under section 51, including arrest and detention. A mortgage suit proceeds differently: a preliminary decree under Order XXXIV, Rule 4 does not itself enable execution, and the decree-holder obtains only a final decree for sale under Order XXXIV, Rule 5 if the mortgagor fails to pay. The special mortgage procedure, the distinction drawn in section 51, and the use of the phrase in other provisions of the Code show that a mortgage decree for sale is not the same as a decree for payment of money. In the absence of an express statutory provision, rule 16(1) cannot be read to deprive a mortgagee of the right to enforce sale of the security. Article 31 of the Constitution of India was also noted in the context of the protection of proprietary rights.
Conclusion: The expression "decree for the payment of money" in rule 16(1) does not include a decree for sale passed in enforcement of a mortgage under Order XXXIV, Rule 5 of the Code of Civil Procedure, 1908.
Final Conclusion: The tax recovery restriction under rule 16(1) does not bar execution of a mortgage decree for sale, and the appellants' objection failed.
Ratio Decidendi: A procedural bar on execution of a money decree cannot be extended by implication to a mortgage decree for sale, because a secured creditor's right to enforce the mortgage security is distinct from the right of a simple money decree-holder.
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