CR IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT: HONOURABLE MR.JUSTICE ANTONY DOMINIC & HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 WA.No.551 of 2015 IN WP(C)27566/2008 AGAINST JUDGMENT IN WP(C) 27566/2008 of HIGH COURT OF KERALA DATED 13.10.2014 APPELLANT/IMPLEADED PETITIONER: SOMASUNDARAM KESAVA VILASOM BUNGALOW, KILIKOLLOOR,KOLLAM BY ADVS.SRI.ANIL D. NAIR SMT.C.S.SULEKHA BEEVI SRI.R.SREEJITH SMT.ROSIE ATHULYA JOSEPH KUM.SOUMYA PRAKASH RESPONDENTS/RESPONDENTS: 1. CHIEF COMMISSIONER OF INCOME TAX CR BUILDINGS, I.S PRESS ROAD, ERNAKULAM, KOCHI 682 018. 2. TAX RECOVERY OFFICER TRICHUR 680 001. 3. SMT.V.H.KUNHIPATHU, W/O.LATE T.A.MOIDEEN THINDICKAL HOUSE, EDATHURUTHY, TRICHUR DISTRICT 680 703. R1&2 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX R1 BY ADV. SRI.CHRISTOPHER ABRAHAM,INCOME TAX DEPARTMENT R1 BY ADV. SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT R4 BY ADV. SRI.SREELAL N.WARRIER R BY GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2017, ALONG WITH WA. 588/2015, COURT ON SAME DAY DELIVERED FOLLOWING: CR ANTONY DOMINIC, J. & DAMA SESHADRI NAIDU, J. W.A.Nos.551 & 588 of 2015 Dated this 24th day of July, 2017 JUDGMENT Antony Dominic, J. These appeals are filed against judgments in W.P.(C) Nos.27566/08 and 14170/2005. Though writ petitions were disposed of by separate judgments, subject matter being connected, these cases were heard together and are disposed of by this common judgment, treating W.A.551/15 filed against W.P.(C) No.27566/08 as leading case. 2. writ petition was filed by appellant s deceased wife Smt.Amaravathy Somasundaram, who was defaulter under Income Tax personally as well as in her capacity as Director of company. Proceedings were initiated against her for recovery of tax due and notice under Rule 2 of IInd Schedule to Income Tax Act, 1961 was issued intimating her that in default of payment of amount specified in certificate within 15 days, steps would W.A.Nos.551 & 588 of 2015 2 : be taken to realise dues in terms of Schedule. That notice was issued on 16.5.1990. Tax was not paid and, therefore, on 3.8.1990, 5.25 Acres of land in Thrissur district was attached by Ext.P10. After completing all procedural formalities, on 12.5.1995 property was sold in terms of Rule 52. 3. In auction, property was purchased by late T.A.Moideen (hereinafter referred to as Purchaser). On 12.5.1995 itself purchaser deposited 25% of bid amount in compliance with Rule 57. While sale was taking place, defaulter had moved this court by filing O.P.No.7180/95 and this court passed order dated 12.5.1995 itself staying further proceedings pursuant to sale. Initially, stay order was for one month, and was extended thereafter until further orders. While stay order was in force, on 21.10.2002, defaulter transferred property to Sri.R.S.Moideen, (hereinafter referred to as Assignee). Subsequently, Purchaser expired on 11.7.2002. In this context, it may also be relevant to state that neither W.A.Nos.551 & 588 of 2015 3 : Purchaser nor Assignee were parties to O.P.No.7180/95. 4. interim order of stay passed by this court on 12.5.1995 was vacated only on 18.12.2005. Subsequently, on 28.3.2005, purchaser s wife (the third respondent in W.A.551/2015), who also was power of attorney holder of other legal heirs, remitted balance 75% and, accordingly, sale was confirmed by Ext.P19 order dated 29.3.2005 and Ext.P19(a) sale certificate was also issued on 30.3.2005. 5. In terms of Rule 86 of IInd Schedule, on 15.4.2005 defaulter filed Ext.P18 appeal and appeal was dismissed by Chief Commissioner of Income Tax as per Ext.P22 order. It was this order, which was challenged in W.P.(C)27566/08 filed by defaulter. writ petition was dismissed by learned Single Judge, mainly concluding that defaulter having transferred property, did not have locus standi to maintain appeal under Rule 86 and that if at all, remedy available to defaulter was to apply under Rule 60 and 61 of Rules to set aside sale. It is W.A.Nos.551 & 588 of 2015 4 : this judgment, which is under challenge in W.A.551/15, filed by deceased defaulter's husband. 6. contention raised by learned counsel for appellant is mainly that rules contained in IInd Schedule to Income Tax Act govern procedure for sale of immovable property and, according to him, rules governing deposit of auction money are mandatory in character. It is stated that in this case, these mandatory rules were not complied with and, therefore, sale was void. In such case, according to counsel, he could not have maintained application under Rule 60 or 61 to set aside sale. He also further contends that irrespective of transfer of property, which insofar as Revenue is concerned, is void one, defaulter could not have been non suited on ground of absence of locus standi to maintain appeal under Rule 86 of Rules. 7. However, this contention is refuted by learned Standing Counsel appearing for Revenue by inviting our attention to W.A.Nos.551 & 588 of 2015 5 : fact that purchaser had expired on 11.7.2002, at time when further proceedings pursuant to sale were stayed by this court. According to him, stay was vacated only on 18.12.2005 and in such situation, rigor of Rule 57 or 58 requiring deposit within time specified cannot be imported into case. He also contended that if at all appellant was aggrieved, remedy available to was to apply under Rule 60 and 61 of Schedule to set aside sale. 8. learned counsel appearing for third respondent, wife of deceased purchaser, adopted contentions of Standing Counsel for Revenue and also contended that having regard to fact that third respondent is in possession of properties since 2005 and appellant, who has not taken recourse to Rule 60 and 61, cannot be heard to contend that he is aggrieved by sale in question. It was also argued that since property was transferred when matter was pending consideration of this court, appellant has ceased to have locus standi to maintain W.A.Nos.551 & 588 of 2015 6 : challenge against sale in question. 9. We have considered submissions made. Admittedly, assessee, deceased wife of appellant in W.A.551/15 was defaulter both in her personal capacity and also as in her capacity as Director of company. That liability had become final and it was to realize dues that proceedings under IInd Schedule to Income Tax Act were initiated against her. It is also admitted fact that even after notice under Rule 2 of IInd schedule was issued, defaulter did not comply with demand and Revenue were entitled to take steps to realize amount due invoking further provisions contained in IInd Schedule. 10. When immovable property is to be attached and sold, Revenue has to comply with provisions contained in Part III of IInd Schedule. In Part III, Rule 56 provides that sale of property attached under Rule 48 and proclaimed under Rule 54, shall be by public auction to highest bidder and shall be subject to confirmation by Tax Recovery Officer. W.A.Nos.551 & 588 of 2015 7 : 11. Rule 57 and 58 being relevant in context of this case, are extracted below for reference: Rule 57. Deposit by purchaser and resale in default--(1) On every sale of immovable property, person declared to be purchaser shall pay, immediately after such declaration, deposit of twenty five percent on amount of his purchase money, to officer conducting sale; and, in default of such deposit, property shall forthwith be resold. (2) full amount of purchase money payable shall be paid by purchaser to Tax Recovery Officer on or before fifteenth day from date of sale of property. Rule 58. Procedure in default of payment--In default of payment within period mentioned in preceding rule, deposit may, if Tax Recovery Officer thinks fit, after defraying expenses of sale, be forfeited to Government, and property shall be resold, and defaulting purchaser shall forfeit all claims to property or to any part of sum for which it may subsequently be sold. 12. Language of Rule 57 is clear that on every sale of immovable property, person declared to be purchaser shall, immediately after such declaration, deposit 25% of amount of his purchase money, to officer conducting sale. Rule further W.A.Nos.551 & 588 of 2015 8 : provides that in default of such deposit, property shall forthwith be resold. In addition, Sub Rule 2 further provides that full amount of purchase money payable shall be paid by purchaser to Tax Recovery Officer on or before 15th day from date of sale of property. 13. Rule 58 providing for consequences of default in complying with Rule 51 show that on default of payment within period mentioned in Rule 57, deposit may, if Tax Recovery Officer thinks fit, after defraying expenses of sale be forfeited to Government, and property shall be resold and defaulting purchaser shall forfeit all claims to property or to any part of sum for which it may subsequently be sold. These Rules, it is to be noted are mandatory not only its language but also makes it to be so explicit by providing consequences for its non compliance. 14. Reference to Rule 60 and 61 are also necessary in this case and, therefore, we extract these provisions also for reference; W.A.Nos.551 & 588 of 2015 9 : Rule 60. Application to set aside sale of immovable property on deposit-- (1) Where immovable property has been sold in execution of certificate, defaulter, or any person whose interests are affected by sale, may, at any time within thirty days from date of sale, apply to Tax Recovery Officer to set aside sale, on his depositing ---- (a) [***] amount specified in proclamation of sale as that for recovery of which sale was ordered with interest thereon at rate of [one fourth percent for every month or part of month], calculated from date of proclamation of sale to date when deposit is made; and (b) for payment to purchaser, as penalty, sum equal to five percent of purchase money, but not less than one rupee. (2) Where person makes application under rule 61 for setting aside sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute application under this rule. Rule 61. Application to set aside sale of immovable property on ground of non service of notice or irregularity--Where immovable property has been sold in execution of certificate, [such Income Tax Officer as may be authorised by Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner in this behalf, defaulter, or any person W.A.Nos.551 & 588 of 2015 10 : whose interest are affected by sale, may, at any time, within thirty days from date of sale, apply to Tax Recovery Officer to set aside sale of immovable property on ground that notice was not served on defaulter to pay arrears as required by this Schedule or on ground of material irregularity in publishing or conducting sale: Provided that-- (a) no sale shall be set aside on any such ground unless Tax Recovery Officer is satisfied that applicant has sustained substantial injury by reason of non-service or irregularity; and (b) application made by defaulter under this rule shall be disallowed unless applicant deposits amount recoverable from him in execution of certificate. 15. If sale is validly conducted under Rule 57, then procedure to get sale set aside is enumerated in Rule 60, which provides that where any immovable property has been sold in execution of certificate, defaulter, or any person whose interests are affected by sale, may, at any time within 30 days from date of sale, apply to Tax Recovery Officer to set aside sale. Such applicant is required to deposit amount W.A.Nos.551 & 588 of 2015 11 : specified in proclamation of sale as that for recovery of which sale was ordered with interest thereon at rate prescribed. In addition, for payment to purchaser, as penalty, sum equal to 5% of purchase money, but not less than one rupee shall also be deposited. Rule 61 provides application to set aside sale of immovable property on ground of non service of notice or other irregularity. 16. Once sale is validly completed, sale is required to be confirmed in terms of Rule 63 and sale certificate is to be issued under Rule 65. Rule 86 provides for appeal and in terms of this Rule, appeal from any original order passed by any Tax Recovery Officer, not being order which is conclusive, shall lie to Principal Chief Commissioner (w.e.f.1.6.13) or Chief Commissioner or Principal C (w.e.f.1.6.13) or Commissioner. 17. reading of these provisions of IInd Schedule to Act show that requirement of deposit of 25% as contemplated in Rule 57(1) immediately after person is declared to be W.A.Nos.551 & 588 of 2015 12 : purchaser and also deposit of balance purchase money on or before 15th day of date of sale of property in terms of Rule 57(2), are mandatory in character. 18. provisions contained in Rule 57, 58, 60 and 61 of Income Tax Act are in pari materia with provisions contained in rule 84, 85, 86, 87, 88, 89 and 90 of Order XXI C.P.C. Rule 84 and 85 of Order XXI CPC, providing for deposit of 25% and 75%, have been consistently held to be mandatory in character and it has been held that courts have no power to extend time prescribed therein. Apex Court had occasion to consider consequence of its non compliance Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another [AIR 1954 SC 349] where it has been held thus: 8. provision regarding deposit of 25 per cent. by purchaser other than decree-holder is mandatory as language of rule suggests. full amount of purchase-money must be paid within fifteen days from date of sale but decree-holder is entitled to advantage of set-off. provision for payment is,. however, mandatory... (Rule 85). If W.A.Nos.551 & 588 of 2015 13 : payment is not made within period of fifteen days, Court has discretion to forfeit deposit, and there discretion ends but obligation of Court to re- sell property is imperative. further consequence of non-payment is that defaulting purchaser forfeits all claim to property (Rule 86). 9. It is not denied that purchasers had not obtained any decree on foot of their mortgage and claim of Rs. 1,20,000 which they put forward before execution Court had not been adjudicated upon or determined. mortgagees, one of whom is pleader, applied on day of sale claiming set-off on foot of mortgage. Court without applying its mind to quest-ion immediately passed order allowing set- off. This claim was obviously not admissible under provisions of rule 84 which applies only to decree- holder. Court had clearly no jurisdiction to allow set- off. appellants misled Court into passing wrong order and obtaining advantage of set-off while they knew perfectly well that they had got no decree on foot of mortgage and their claim was undetermined. There was default in depositing 25 percent of purchase-money and further there was no payment of full amount of purchase- money within fifteen days from date of sale. Both deposit and payment of purchase-money being mandatory under combined effect of rules 84 and 85, Court has discretion to forfeit deposit but it was bound to re-sell property with result that on default purchaser forfeited all claim to property. These provisions leave no doubt that unless deposit and payment are W.A.Nos.551 & 588 of 2015 14 : made as required by mandatory provisions of rules, there is no sale in eye of law in favour of defaulting purchaser and no right to own and possess property accrues to him. 10. In two cases decided by Calcutta High Court, viz., Munshi Md. Ali Meah v. Kibria Khatun (1), and Sm. Annapurna Dasi v. Bazley Karim Fazley Moula (2), sale was held to be no sale where purchaser had failed to deposit balance of purchase-money as required by rule 85. similar view was taken by Division Bench of Allahabad High Court in Nawal Kishore and Others v. Buttu Mal and Subhan Singh (3). provisions of rule 86 were held to be mandatory in another decision of same Court, Haji Inam Ullah v. Mohammad Idris (4), and it was held that Court was bound to re-sell property upon default irrespective of any application being made by any party to proceedings. case of Bhim Singh v. Sarwan Singh (5) was case of failure to make deposit as required by section 306 of Code of 1882 (corresponding to rule 85 of present Code). Court treated it as material irregularity in conducting sale which must be enquired into upon application under section 311, (corresponding to rule 90 of present Code), and not by separate suit to set aside sale. Court did not apply its mind to question whether provisions of section 306 being mandatory sale should not be treated as nullity for non-compliance with those provisions. decision of single Judge (app J.) in Nathu Mal v. Malawa Mal and Others (1) is distinguishable upon its facts. There auction-purchaser had actually tendered W.A.Nos.551 & 588 of 2015 15 : money but payment was postponed by consent of parties pending disposal of objection by judgment debtor. We do not agree with remark made in that case that provisions of rule 85 are intended "to be directory only and not absolutely mandatory." Division Bench of same Court (Tek Chand and Abdul Rashid JJ.) held in A. R. Davar v. Jhinda Ram (2), that Court had no jurisdiction to extend time for payment of balance of purchase- money under rule 85 and must order resale under rule 86. 11. Having examined language of relevant rules and judicial decisions bearing upon subject we are of opinion that provisions of rules requiring deposit of 25 per cent. of purchase-money immediately on person being declared as purchaser and payment of balance within 15 days of sale are mandatory and upon non-compliance with these provisions there is no sale at all. rules do not contemplate that there can be any sale in favour of purchaser without depositing 25 per cent. of purchase- money in first instance and balance within 15 days. When there is no sale within contemplation of these rules, there can be no question of material irregularity in conduct of sale. Non- payment of price on part of defaulting purchaser renders sale proceedings as complete nullity. very fact that Court is bound to resell property in event of default shows that previous proceedings for sale are completely wiped out as if they do not exist in eye of law. We hold, therefore, that in circumstances of present case there was no sale and purchasers acquired no rights at all. W.A.Nos.551 & 588 of 2015 16 : 19. These principles have been followed in Balram son of Bhasa Ram v. Ilam Singh and others [AIR 1996 SC 2781], it was again held thus: 10. It is also to be noted that duty to pay full amount of purchase money prescribed period of 15 days from date of sale of property is cast on purchaser by virtue of Rule 85 of Order XXI and therefore, entire responsibility to make full compliance of mandatory provision is his. proviso to Rule 85 is enacted for benefit of purchaser when he is decree-holder and is entitled to advantage of any set off under Rule 72. proviso giving this benefit to decree-holder purchaser merely relieves him of requirement of depositing that amount of which he is entitled to claim set off, but it does not relieve him of they duty to deposit full amount taking advantage of set off. Any mistake made while claiming set off which results in failure to deposit full amount of purchase money within 15 days of date of sale renders decree- holder purchaser liable to same adverse consequences which would ensue to any other purchaser due to non-compliance of Rule 85. No distinction is made between decree-holder purchaser entitled to claim set off under Rule 72 and any other purchaser for purpose of strict compliance with requirement under Rule 85. contentions of learned counsel for appellant have not merit. W.A.Nos.551 & 588 of 2015 17 : 20. Similar are principles laid down in Gangabai Gopaldas Mohata v. Fulchand and others [AIR 1997 SC 1812], where sale has been held to be void. 15. Rules relating to Court sale provided in Order 21, Rules 84 and 85 are analogous. They require purchaser to make deposit of 1/4th of purchase money immediately after sale and balance shall be deposited within 15 days. This Court held in Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahamad. 1966 (1) SCR 108: (AIR 1954 SC 349), that non- compliance with Rules 84 and 85 of Order 21 would render sale void in eye of law. contention in said case, that non-compliance with aforesaid rule only renders sale irregular, was repelled by this Court. same principle would apply to sale regulations contained in above quoted Maharashtra Rules. 21. legal position in context of Rule 57 itself has already been clarified by Apex Court in its judgment in C.N.Paramsivan and Another v. Sunrise Plaza Tr. Partner and Others [2013] 4 S.C.R. 1. That was case arising under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 where sale of properties are to be held in terms of IInd W.A.Nos.551 & 588 of 2015 18 : Schedule to Income Tax Act. In that context, provisions contained in IInd Schedule came up for consideration of Apex Court and paragraphs to extend it is relevant read thus: 27. There is nothing in provisions of Section 29 of RDDB Act or scheme of rules under Income Tax Act to suggest that discretion wider than what is explained above was meant to be conferred upon Recovery Officer under Section 29 of RDDB Act or Rule 57 of Income Tax Rules which reads as under: 57. (1) On every sale of immovable property, person declared to be purchaser shall pay, immediately after such declaration, deposit of twenty-five per cent on amount of his purchase money, to officer conducting sale; and, in default of such deposit, property shall forthwith be resold. (2) full amount of purchase money payable shall be paid by purchaser to Tax Recovery Officer on or before fifteenth day from date of sale of property. 28. It is clear from plain reading of above that provision is mandatory in character. use of word shall is both textually and contextually indicative of making of deposit of amount being mandatory requirement. xx xx xx xx W.A.Nos.551 & 588 of 2015 19 : 32. In light of above we see no reason to hold thatRules 57 and 58 of Income Tax Rules are anything but mandatory in nature, so that breach of requirements under those Rules will render auction non-est in eyes of law. 22. It is in light of these binding principles that we have to appreciate case before us. Admittedly, sale was on 12.5.1995. On 12.5.95 purchaser was declared to be successful and, therefore, she deposited 25% of purchase money and thus complied with Rule 57(1). She ought to have deposited balance amount within 15 days thereafter. It is contention of Department and purchaser that interim order passed by this court on 12.5.95 in O.P.7180/95 prevented authorities from accepting balance sale consideration within 15 days period. Even if we accept aforesaid contention in favour of Income Tax Department and purchaser, that benefit can extend only till 18.2.2005 when stay was vacated by this court. Then also, Purchaser or it being estate left behind by Purchaser, who had expired in W.A.Nos.551 & 588 of 2015 20 : meantime, his legal heirs, had duty to comply with requirements of Rule 57(2) within 15 days thereafter. However, what transpired thereafter is revealed from paragraph 19 of Ext.P22, order passed by Commissioner, thus: TRO contacted Smt.V.H.Kunhipathu, wife of deceased, to know details of legal heirs. heirship certificate from Tahsildar, Kodungallur was filed. Copies of power of attorney executed by each of legal heirs on various dates in 2003 and 2004 giving Smt.Kunhipathu authority to act and deal with all properties of Sri.T.A.Moideen were filed. Smt.Kunhipathu informed TRO, vide letter dated 8.3.2005, that she was willing to remit balance, but she asked for time of one month, as her son Dr.Mubarak was away in UAE. balance amount of price fixed in auction was paid on 28.3.2005. TRO issued sale certificate dated 30.3.2005 in form No.ITCP 20 in respect of property, in favour of Smt.V.H.Kunjipathu, power of attorney holder for legal heirs of Sri.T.A.Moideen. 23. above paragraph of order would show that despite fact that Department had no obligation to have issued any notice or other intimation to legal heirs of deceased purchaser, Department in fact informed wife of deceased W.A.Nos.551 & 588 of 2015 21 : purchaser, SmtV.H.Kunhipathu, third party respondent in W.A.551/15 and that she, vide her letter dated 8.3.2005, informed Department that she was willing to remit balance but asked for one month's time. It was, accordingly, that she deposited balance 75% of amount on 28.3.2005. In other words, wife of deceased Purchaser, who also held power of attorney of other legal heirs of deceased, did not deposit balance amount within 15 days period specified in Rule 57(2), even if said period is reckoned from 18.2.2005, when order of stay was vacated by this court. Evidently, therefore, there is non compliance of mandatory provisions of Rule 57(2) attracting consequences of such default as contained in Rule 58 and explained by Apex Court in judgments referred to above. This means that confirmation of sale, ordered on 29.3.2005 is of void sale and sale certificate issued on 30.9.2005 being dependent order is also void and is of no consequence. W.A.Nos.551 & 588 of 2015 22 : 24. It was argued before us that if at all appellant wanted to avoid sale, remedy available was to take recourse to Rule 60 or 61 of Rules by making application to set aside sale and not appeal under Rule 86. We are unable to accept this contention. Apex Court has repeatedly held that confirmation of sale in contravention of Rule 57 and 58 is void and that as result of default committed by purchaser or his legal heirs, sale itself is wiped out, to borrow expression used by Apex Court. In case where sale held under Order XXI of CPC pursuant to decree which was nullity, there is no question of any party having to resort to provisions of Rule 89 and 90 of Order XXI C.P.C. to have sale set aside and any claim based on void sale can be resisted without having sale set aside. This principle has been recognized by Apex Court in its judgment in Ram Chandra Arya v. Man Singh and another [AIR 1968 SC 954] where it, inter alia, held thus: W.A.Nos.551 & 588 of 2015 23 : In present case decree being nullity, has to be treated as non est and, consequently sale, when held, was void ab initio. In such case, there is no question of any party having to resort to provisions of Rr. 89 and 90 of O. 21, C.P.C. to have sale set aside. Any claim based on void sale can be resisted without having that sale set aside. decision of this Court in that case itself bring out this distinction by stating: It is to be noted however, that there may be cases in which, apart from provisions of Rr. 89 to 91 Court may refuse to confirm sale, as, for instance, where sale held without giving notice to judgment-debtor, or where Court is misled in fixing reserve price or when there was no decree in existence at time when sale was held. This Court, thus, in that case, clearly recognised that, if there be no decree in existence at time when sale is held, sale can be ignored and need not be set aside under provisions of Rr. 89 to 91, C.P.C. In present case, as we have held, decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, sale must be held to be nullity. 25. Reference should, in this context be made again to principles laid down in Manilal Mohanlal Shah's case [AIR 1954 SC 349] (supra). Paragraphs 9, 10 and 11 already extracted above shows that default in remittance of purchase money, renders sale W.A.Nos.551 & 588 of 2015 24 : in execution of decree, nullity. 26. We have already held that Rule 60 and 61 of IInd Schedule to Income Tax Act are pari materia with provisions contained in Rule 89 and 90 of Order 21 C.P.C., and as held by Apex Court principles which govern rules under Order XXI would apply to rules in IInd Schedule to Act also. Therefore, principles of law laid down by Apex Court in context of Rule 89 and 90 are equally applicable in interpreting Rule 60 and 61 of Ist Schedule. 27. If that be so, law as laid down in case of Ram Chandra Arya (supra) has to answer contention now raised before us. 28. Apparently, as last resort, argument was raised, that Purchaser who had alienated property in favour of R.S.Moideen on 21.10.2002 had no proprietary interest in property to maintain appeal under Rule 86 of Rules. Therefore, according to respondents, not only appeal filed by W.A.Nos.551 & 588 of 2015 25 : her before Commissioner but also writ petition and writ appeal are liable to be dismissed for want of locus standi. 29. Admittedly, it was default of deceased defaulter which led to sale and consequential proceedings. It was defaulters property, which came to be proceeded against and was ultimately sold. According to Revenue, such sale is hit by Rule 16 of Rules in IInd Schedule which reads thus: 16. Private alienation to be void in certain cases-- (1) Where notice has been served on defaulter under rule 2, defaulter or his representative-in-interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with permission of Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of decree for payment of money. (2) Where attachment has been made under this Schedule, any private transfer or delivery of property attached or of any interest therein and any payment to defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under attachment. W.A.Nos.551 & 588 of 2015 26 : 30. This rule provide that any private alienation after notice under Rule 2 has been served on defaulter, except with permission of Tax Recovery Officer shall be void. Sale admittedly was without permission of Tax Recovery Officer. Therefore, and as rightly contended by counsel for Revenue, sale is void at least as against Revenue. If that be so, insofar as proceedings between appellant and Revenue are concerned, appellant is fully entitled to maintain legal proceedings impugning sale and further proceedings. Therefore, this contention is only to be refuted and we do so. 31. For all these reasons, we are inclined to think that learned Single judge erred in dismissing writ petition filed by appellant. Accordingly, judgment under appeal in W.A.551/2015 is set aside and Ext.P22 order passed by first respondent is also set aside. writ appeal is allowed as above. 32. Turning to W.A.588/15 filed by assignee of property Sri.R.S.Moideen, that assignment, according to us, is hit by W.A.Nos.551 & 588 of 2015 27 : Rule 16 of IInd Schedule to Act. 33. If that be so, he could not derive any benefit consequent on transfer in his favour. In that view of matter, we are not inclined to entertain any challenge against proceedings initiated by Income Tax Department at instance of appellant herein. Consequently, W.A.588/15 has to fail and is dismissed. Resultantly, W.A.No.551/15 is allowed and W.A.588/15 is dismissed. SD/- ANTONY DOMINIC JUDGE SD/- DAMA SESHADRI NAIDU JUDGE jes Somasundaram v. Chief Commissioner of Income-tax, Kochi / Ta Recovery Officer, Trichur / V.H. Kunhipathu