SHANTI VS KARACHI TRANSPORT CORPORATION, 2000 PTD-KARACHI-HIGH-COURT-SINDH 1193 (2000)

2000 P T D 1193

[Karachi High Court]

Before Rasheed Ahmed Razvi, J

Mst. SHANTI

versus

KARACHI TRANSPORT CORPORATION and others

Suit No.318 of 1988; Civil Miscellaneous Applications Nos. 1353 of 1999 in Ex.30 of 1997, 1268 of 1999 in Ex.51 of 1996, 1357 of 1999 in Ex.51 of 1996, 1354 of 1999 in Ex 52 of 1996, 169 of 1999 in Ex.53 of 1996, 1363 of 1999 in Ex. 53 of 1996, 1266 of 1999 in Ex. 4 of 1997, 1356 of 1999 in Ex.4 of 1999, 1360 of 1999 in Ex. 5 of 1999, 1267 of 1999 in Ex. 6 of 1999, 1362 of 1999 in Ex. 6 of 1999, 1264 of 1999 in Ex. 10 of 1999, 1363 of 1999 in Ex. 10 of 1999, 1165 of 1999 in Ex. 13 of 1999, 1355 of 1999 in Ex. 13 of 1997, 1569 of 1999 in Ex.62 of 1997, 1270 of 1999 in Ex.64 of 1998, 1359 of 1999 in Ex.64 of 1998; Nazir Ref. dated 15-9-1999 and O.A.'s Refs. dated 27-8-15199, 18-6-1999, decided on 22/01/2000.

(a) Civil Procedure Code (V of 1908)---

----S. 82---Decree against Government---Scope---One of the purpose of provisions of S.82, C.P.C. is to enable the Government to meet and face the demands of a decree-holder and not to frustrate the same.

(b) Civil Procedure Code (V of 1908)---

----S.' 73 --Principle .of rateable distribution of proceeds of execution/sale among the decree-holders---Preference to Government liability over claim of secured creditors---Scope---Such liabilities of the Government arising subsequent to a charge on the properties cannot have preference over the claim of secured creditors.

Federation of Pakistan v. Pioneer Bank Ltd. PLD 1958 Dacca 535 and Industrial Development Bank Ltd. v. Messrs Maida Limited and 3 others

(c)Income Tax Ordinance (XXXI of 1979)---

----S. 92---Recovery of tax from persons holding money on behalf of an assessee---Prerequisites---Existence of assessee against whom income-tax was due or payable and that the amount being retained by such person should belong to the assessee.

(d) Income Tax Ordinance (XXXI of 1979)---

----S. 92---Civil Procedure Code (V of 1908), S. 73---Sindh Chief Court Rules (O.S.), R-. 364---Principle of rateable distribution of proceeds of execution/sale---Recovery of income-tax of the judgment-debtor from sale proceeds---Preference to Government liabilities over claim of decree holders-- Property of the judgment-debtor was publicly auctioned in execution proceedings to satisfy the decrees---Income-tax Department made a demand out of such proceeds for the recovery of income-tax due on the judgment-debtor---Such demand was made without establishing that the claim of income-tax was the result of duly conducted assessment proceedings-- Validity---Unless it was established that such claim by the defendant was well determined and settled, right to priority of the Government dues could not be given preference as against the decree-holders---High Court directed the Nazir of the Court to disburse the respective claims of the decree-holders and remaining amount to be given to the Income tax Department---No preference was given to the Government dues over the decree-holders in circumstances.

Saeed Abu Mian v. Haji Abdul Ghani and another PLD 1974 Kar. 39; Messrs Anwar H. Pir Bhai & Co. PLD 1974 Kar. 42; Murli Tahilaram v. T. Asoomal & Co. AIR 1955 Cal. 423; Oudh Commercial Bank Ltd. v. Secretary of State AIR 1935 Lah. 319(2); Lala Muni Lal v. Dewan Chand and another AIR 1939 Lah. 488; Rex v. Wells (1812) 16 East 278; Quick's case 16 East 282; Henlay & Co.'s case (1878) 9 Ch. D 469; New South Wales Taxation Commissioners v. Palmer (1907) AC 179; Secretary of State v. Bombay Landing and Shipping Co. 5 Bom. HCR (OC) 23; Ganpat Putaya v. Collector of Kanara 1 Bom. 7; Gulzari Lai v. Collector of Bareilly 1 All. 596; Union of India v. Messrs Somasundaram Mills (P.) Ltd. and another AIR 1985 SC 407; Messrs Builders Supply Corporation v. Union of India and others (1955) 28 ITR 979; Builders Supply Corporation v. Union of India and others AIR 1965 SC 1061 = (1965) 56 ITR SC 91 and Habib Bank Ltd. v. Rudolf Donhill and others (1999) 80 Tax 99 ref.

(e) West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 79 & 80---Recovery of Government dues as, arrears of land revenue---. Scope---All the provisions of law which authorise any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount of dues as fixed, ascertained and determined sum of money.

Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384; Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 and Raj Kumar and 3 others v. National Bank of Pakistan and another 1994 CLC 206 ref.

Hussain Shah Rashdi and Nasir Maqsood for the Decree-Holder.

Nasrullah Awan for the Income-tax Department.

Munirur Rehman, Addl. A.-G. alongwith Gul Muhammad Soomro, Legal Advisor, K.T.C.

ORDER

RASHEED AHMED RAZVI, J.--- Some 11 (eleven) decree-holders in the above twelve cases have filed separate applications under Rule 364 of Sindh Chief Court Rules (OS) seeking permission to withdraw their respective decretal amounts lying with the Nazir of this Court. At the same time, the Official Assignee has also filed a reference, dated 18-6-1999 which is based on a letter written by the Deputy Commissioner of Income Tax. Circle II, Companies Zone IV, Karachi through which an amount of Rs.38,208,757 is claimed as liability of income tax outstanding against the judgment-debtor, namely, Karachi Transport Corporation. (hereinafter referred to as the 'K.T.C.') for the period 1989-90 to 1994-95. There are seven (7) other applications filed under Order XXI, Rule 52, C.P.C. on behalf of the decree-holders praying that the decretal amount be retained till further orders. This order will dispose of all the above applications alongwith the reference of the Nazir and Official Assignee.

2. According to another report of the Official Assignee, dated 27-8-1999 an excess amount of Rs.16,910,187 is available with the Official Assignee after adjustment and payment of the decretal amounts in all these twelve Execution Applications, arising out of several decrees passed by this Court in the matters arising out of Fatal Accidents Act, 1855. In all these cases, the main defendant/judgment debtor was the K.T.C.

3. On 26-11-1998, by consent of the parties, it was ordered that all the moveable properties, including the buses of the K.T.C will be disposed of by the Government of Sindh through public auction to be conducted under the supervision of the Official Assignee and a sum of Rs.18,489,517 was to be deposited as first charge/liability belonging to the decree-holders. It is stated by Mr. Nasir Maqsood that thereafter an amount of Rs.4,45,00,000 was deposited with the Nazir against the sale proceeds of 211 buses. However, no amount was deposited in respect of Execution No.62 of 1997 (Dr. Aziza 'Abbasi v. The State) wherein the plaintiff is now being represented by Mr. Hussain Shah Rashdi. I have heard Mr. Nasrullah Awan, Advocate for the Income Tax Department, Mr. Munirur Rehman, Additional Advocate General, Sindh, who has appeared on Court Notice, Mr. Nasir Maqsood, and Mr. Hussain Shah Rashdi, Advocates for the decree-holders.

4. According to Mr. Nasrullah Awan, Income Tax Department has a priority right over the decree-holders on the decretal amount retained by this Court in view of section 73, C.P.C. read with section 92 of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979). In support of his contention, he has referred to the decision of this Court in Saeed Abu Mian v, Hali Abdul Ghani and another PLD 1974 Kar. 39 and In re: Messrs Anwar H. Pir Bhai & Co. PLD 1974 Kar.' 42. Mr. Munirur Rehman has raised preliminary objection in view of section 82 of the C.P.C. and stated that these decrees are -not executable unless the provisions of section 82, CT:C. are complied with. On the merits of the claim of Income Tax authorities, it was contended by the learned Additional Advocate-General, Sindh that the alleged claim of the Income Tax Department, as reflected in the Official Assignee's reference, is neither final nor reasonably determined. He has placed reliance on section 85 of the Ordinance, 1979 and contended that no such notice was issued by the concerned Income Tax Authority in order to make the claim final and binding. Mr. Nasir Maqsood argued that the mode of rateable distribution, as provided in section 73, C.P.C. in no manner grants priority to the recovery of an undetermined amount of income tax over the decretal amount. It was further argued that even section 92 of the Ordinance, 1979 does not extend any right of priority to the recovery of income tax over the decretal amount. He has placed reliance on the cases of Indian jurisdiction namely, Murli Tahilaram v. T. Asoomal & Company AIR 1955 Cal. 423.

5. In so far as the objection of Mr. Munirur Rehman based on section 82, C.P.C. is concerned, reply could be found in the order, dated 26-11-1998 which was passed on the execution application by consent of all the parties including the representative of, the Government of Sindh and all the execution applications were allowed in terms proposed therein. On that date another Law Officer from the office of the Advocate-General, Sindh was present to represent the Government of Sindh. On, several occasions in past, this objection was never raised. It was rightly contended that once the Government itself has acted on the order, dated 26-11-1998, it cannot raise objections based on section 82, C.P.C. One of the purpose of this provision is to enable the Government to meet and face the demands of a decree-holder and not to frustrate the same. Mr. Hussain Shah Rashdi has also argued on the same lines.

6. It was stated by Mr. Haji Bashir Ahmed Memon, Official Assignee that as of today, an amount of Rs.20 million approximately is lying in excess with him which is inclusive of all profits and which is over and above the decretal amount already deposited with the Nazir of this Court. However, the present amount lying with the Nazir does not include the decretal amount of Execution No.62 of 1987 and, therefore, I direct the Official Assignee to forward an amount of Rs.1,700,000 to the Nazir of this Court, who will retain the same in Execution Application 62 of 1987 till further orders, from this Court.

7. Section 73 of C.P.C. deals with the rateable distribution of the assets.. However, subsection (3) thereof envisages that the method prescribed in subsection (3) will not affect the right of the Government. This question was considered by this Court in reference to section 46 of the Income-tax Act, 1922 (now repealed and replaced by the Ordinance 1979) in the case of Saeed Abu Mian (supra) where the following rule was laid down:---

....I am unable to accept this proposition for it overlooks subsection (3) of section 73 of the C.P.C. which in clear terms saves the right of the Government and there would have been no occasion to introduce this subsection, if the intention was to confine the controversy between the decree-holders only as to which of them was entitled to receive, whole or, in part of the amount deposited in Court. The right of priority of Government debts is independent of subsection (3) of section 73, C.P.C. and not its creation. It will, therefore, . follow that the Government with its priority for undisputed debts, though not a decree-holder, can apply to the Court for withdrawal of the money lying deposited in Court..." - (Emphasis laid).

8. In so far as the insolvency case PLD 1974 Kar 42, cited by Mr. Nasrullah Awan, is concerned, it is not relevant for the present controversy as in that case rights and liabilities in respect of insolvency matter were discussed. However, section 73, C.P.C. was also considered by a single Judge of Calcutta High Court in the case of Murli Tahilran (supra) where reference was made to several English and Indian cases. It was observed. inter alia, that section 73(3) of the Indian Code of Civil Procedure, which is pari materia to section 73(3) of the Pakistani C.P.C. does not confer any priority on the State but what it says is that the doctrine of rateable distribution will not prejudice right of any State, which right must be established first and unless that is established the Court will not allow the principle of rateable distribution to override the same. It was further held that a right accrued under a decree or judgment of the Court becomes a fundamental right as guaranteed under Article 19(1)(f) of the Indian Constitution and, therefore, the priority claim of the State to recover Sales Tax will amount to infringement of fundamental right of such citizens. Before proceedings further, it would- be advantageous to reproduce the provisions of section 73(3) as well as section 92 of the Income Tax Ordinance, 1979 which read as follow:---

"73(1) ... Not relevant

73(2) ... Not relevant

73(3) Nothing in this section affects any right of Government. "

Section 92, Income Tax Ordinance, 1979.

"92. Recovery of tax from persons holding money on behalf of an assessee:--- (1) For the purpose of recovering any tax payable by an assessee, the Deputy Commissioner may, by notice in writing, require any person-

(a) from whom any money is due or may become due to the assessee; or

(b) who holds, or controls the receipt or disposal of, or may subsequently hold, or control the receipt or disposal of, any money belonging to the assessee or on account of the assessee; or

(c) who is responsible for payment of any sum to the assessee to which section 50 applies, to pay to the Deputy Commissioner, in any case to which clause (a) or (b) applies, the sum specified in the notice on or before such date as may be so specified, or to deduct, in any case to which clause (c) applies, from any payment subsequent to the date of such notice any arrears of tax due from the assessee as specified in the said notice and the provisions of subsections (8) and (9) of section 50 and section 52 shall, so far as may be, apply as if the sum or the arrears of tax specified in the said notice, as the case may be, were a sum deductible under section 50.

2. Any person who has paid any sum in compliance with a notice under subsection (1) shall, be deemed to have paid such sum under the authority of the assessee and the receipt of the Deputy Commissioner shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the sum referred to in such receipt.

(2-A) If any person on whom a notice under subsection (1) is served fails to pay, or to deduct, as the case may be, the amount specified in the said notice, such person shall be treated as an assessee in default and the amount specified in the said notice shall be recoverable from him by the Tax Recovery Officer or the Collector in accordance with the provisions of sections .93 and 94.

(3) For the purpose of this section, 'person' includes any Court.Tribunal or any other Authority."

9. Reverting to the case of Murli Tahilram (ibid), it was a case of money decree Where one of the questions was whether the claim of State of Bengal is preferential claim and whether it is to be paid in priority to all other claims against the defendant. Reference was made to section 73(3) of Indian C.P.C. Several cases from Indian and English jurisdiction were cited. The learned Single Judge of Calcutta High Court; after survey of cases, observed as follows:---

"On section 73, Civil Procedure Code there are many answers. The first obvious answer is that section 73(3) of the Code does not confer any priority on the State but what it does is to say that doctrine of rateable distribution will not prejudice the rights of any State. But the right to priority must be established first; and when that is done section73(3) protects that priority and will not allow the principle of rateable distribution to override it. Secondly, section 73 of the Code is quite irrelevant in this context because it never applies where assets are held for a specific purpose as in this case by order of Court to pay the sum to the decree-holder, and it applies only when the application is made before the receipt of the assets in Court which again is not the fact in this case:

(13) I, therefore, hold that Bengal Public Demands Recovery Act and the Statutory Rules made thereunder do not give priority to the State or allow preferential payment to the State of its dues in respect of arrears of sales tax out of the moneys in the hands of a Receiver appointed by the Court and directed to be paid by the Court to the decree-holder prior to any intervention by the State. I also hold that sections 60 and 73(3), Civil Procedure Code, do not create such priority. "

10. There are other cases from the Indian jurisdiction involving the present controversy. A resume of such cases shows that in order to claim priority on behalf of Government on the amount lying with the Court there must be determined and settled claim of the Government. In the case of Oudh Commercial Bank, Ltd. v. Secretary of State AIR 1935 Lah. 319(2), it was held by a Division Bench of Lahore High Court that section 73(3), C.P.C. does not confer any jurisdiction on the Executing Court to entertain a claim on behalf of the Government in the absence of any decree in support of it. In the case of Lala Muni Lal v. Dewan Chand and another AIR 1939 Lah. 488, a learned Single Judge of Lahore High Court declared that the Government will have priority over the claim of other decree-holder as in that case the Government also held a decree in its favour. Subsection (3) of section 73 was considered in the following perspective with the other case-law which being relevant is reproduced as follows:---

"...It is expressly laid down in subsection (3) of section 73, Civil Procedure Code that nothing contained in that section affects any right of the Government. This subsection gives statutory recognition to the maxim quando jus domini regis et subditi concurrunt, jus regis praferri debet (when the right of a king and that of the subject concur, the king's right shall be preferred). This principle had long been given effect to in England, where it had been held that when the right of the Crown and the right of the subject, in respect of payment of a debt of equal degree compete, the Crown's right prevails: (1812) 16 East 278 (Rex v. Wells), 16 East 282 (Quick's case). (1878) 9 (Ch. D. 469) (In re: Henlay & Co.) at p.481 and (1907) AC 179 (New South Wales Taxation Commissioners v. Palmer). That the Crown has the prerogative of precedence in respect of decree debts was ruled by the Courts in this country, even before the enactment of any provision corresponding to section 73(3) of the present Civil Procedure Code see 5 Bom. HC R (OC) 23 (Secretary of State v. Bombay Landing & Shipping Co.) I Born. 7 (Ganpat Putaya v. Collector of Kanara and 1 All 596 (Gulzari Lal v. Collector of Bareilly). After the enactment of this provision, it is beyond doubt that when the Crown and a private individual both execute their decrees against the same judgment-debtor and seek to be satisfied out of the same fund, the rules as to rateable distribution laid down in section 73(1) do not apply and the decree in favour of the Crown has priority..."

11. In the case of Union of India v. Messrs Somasundaram Mills (P.) Ltd. and another AIR 1985 SC 407, the appellant was claiming preferential claim being Income Tax. In that case proceedings for income tax assessment were finalised and reached the level of Collector who directed the Tehsildar to take immediate action to attach the shares and to sell them by public auction. Thereafter, in an execution proceedings arising out of simple money decree, the Income Tax Department intervened and there it was held by Indian Supreme Court that the Government has right of priority over the claim of the decree-holder. It will be seen that prior to filing of execution in the case before the Indian Supreme Court, the Income Tax Department had already attached shares of respondent company and, thus, established preferential right of its claim over the decree-holder. In the instant suit, there is a simple letter filed on behalf of Income Tax Department that there is a claim against the judgment-debtor without specifying the exact period and without disclosing whether any assessment proceedings were ever conducted against the K.T.C. It is to be noted that the Additional Advocate-General, Sindh, has opposed the plea of the Income Tax Department. It was duty of the said department to place some convincing material before the Court to show that their claim is based upon an assessment proceeding which was participated by the K.T.C. and which has attained finality. Despite lengthy arguments spread over several dates of hearing, the Income Tax Department never acted in a manner to substantiate/justify their claim.

12. The question to claim priority of Government duties in reference to taxes came up for consideration before a Division Bench of Calcutta High Court in the case of Messrs Builders Supply Corporation v. Union of India and others (1955) 28 ITR 979. Reference was also made to the case of Murli Tahilram (supra) and other cases from English jurisdiction. It was held, "It is futile to contend that the law of India has never recognized the principle of priority of Crown claims." However", it was clarified, "Crown debts enjoy a right only against unsecured creditors, and therefore, if precedence over secured creditors as well was to be achieved, a statutory declaration of first charge was necessary. It was also necessary because even against unsecured creditors Crown claims could prevail over private claims only if they met at the same point of time." Appeal filed against the decision by a Division Bench of Calcutta High Court was also dismissed by the Indian Supreme Court. (See Builders Supply Corporation v. Union of India and others AIR 1965 SC 1061) = (1965) 56 ITR 91 (Supreme Court).. Before the Supreme Court of India, section 42 of the Indian Income-tax Act, 1922 was referred which deals with the doctrine of priority of the Government debts over other claims. It was held that section 42 does not provide for the principle of priority of tax dues at all. Reference was also made to the Recovery Act. It was held that the application of doctrine of priority of arrears of tax over private debts can be said to be displaced by language of the provisions of the Recovery Act. It was a case where the Executing Court received amount due from the assessee in execution of a decree passed against the assessee. The Executing Court preferred the claim for the amount of tax arrears due from the assessee in priority to the creditor by the assessee which was upheld upto the level of Indian Supreme Court. However, in the present case, the Government has chosen to file its claim after much delay. This aspect I will discuss in the subsequent paras. of this order.

13. Recently, a learned Division Bench of this Court has considered sections 77 and 92 of the Ordinance, 1979 in an appeal filed against the decision of a Single Judge of this Court which directed that payment of part of sale proceeds be paid to the Income Tax Department as satisfaction of its income tax liabilities. (See Habib Bank Ltd. v. Rudolf Donhil and others (1999) 80 Tax 99 (H.C. Karachi). Appeal was allowed. Section 92 of the Ordinance, 1979 was interpreted in the following manner:---

"8. A plain reading of the above would show that Mr. Iqbal Ahmad is right to the extent that subsection (1) of section 92 does not provide that a debtor of the assessee of a person in control of moneysbelonging to him is invariably liable to discharge the tax liabilities of the assessee. It only enables the Deputy Commissioner (Income tax Officer. prior to 1993 Amendment) to require such person by a notice in writing to pay any arrears of tax specified in such notice In fact it is subsection (2-A) of the aforesaid section, which was aforesaid part of the original Ordinance, but was inserted through an amendment made vide Finance Act, 1981 which provides that if such person on whom a notice is served under subsection (1) fails to pay the amount specified in the notice, he is required to be treated as an assessee in default."

14. The case of Rudolf Donhill. (ibid) involves somewhat similar dispute. In that case equitable mortgage was created by deposit of title deeds of an immovable property in favour of appellant H.B.L. who subsequently obtained a decree in its favour from a Banking Court. The Income Tax Department was also claiming tax liabilities against the judgment-debtor for the years 1978-81 and moved an application under section 73(3). of the C.P.C. read with section 92 of the Ordinance, 1979 which was granted and matter went into appeal. Reference was made to the cases Federation of Pakistan v. Pioneer Bank Ltd. PLD 1958 Dacca 535, Industrial Development Bank Ltd. v. Messrs Maida Limited and 3 others 1989 CLC 143 and an unreported judgment of this Court in the case Industrial Development Bank of Pakistan v. Commissioner of Income Tax (H.C.A. No.85 of 1987), whereafter it was observed." The Government liabilities arising subsequent f to a charge on the properties cannot have preference over the claim of secured creditors." In the aforesaid circumstances, the appeal was allowed and the order of a learned Single Judge of this Court was set aside by a d Division Bench.

15. Section 92 of the Ordinance, 1979 authorises the Deputy Commissioner of the Income Tax Department to require from any person, including a Court, Tribunal and other authority, through a notice in writing, any tax due or may become due, if such amount is being held by that person. If, after service of notice as provided under section 92(1) that person fails to pay or to deduct the amount of income tax due, then such person shall be treated in default and the required income tax dues shall be recovered in accordance with sections 93 and 94 of the Ordinance, 1979. The first pre requisite for enforcing this provision is that there must be an assessee against whom income tax is "due or payable". There are the two words used in section 92(1)(b). The second condition is that the amount being retained by the person should belong to the assessee. In the instant case, it has rot been established by the Income Tax Department that their claim is the result of duly conducted assessment proceedings. Despite objections from the Additional Advocate-General that the K.T.C. is not liable to pay this amount of income tax, no material was placed from the side of the department to show that the claim by them is well-determined and settled. Unless it is established, the right to priority of the Government dues cannot be given preference as against the decree-holders.

16. There are other provisions of law which prescribe coercive methods for recovery of Government dues. Such provisions are sections 79 and 80 of Sindh Land Revenue Act, 1967 which provide, inter alia, for recovery of arrears of land revenue. Section 25 of the Agricultural Development Ordinance, 1961 also provides that the outstanding dues of the A.D.B.P. are to be recovered as arrears of land revenue. In the case Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 at 74, it was held, inter alia, by a Full Bench of Honourable Supreme Court, "It is now well-settled that all the provisions of law which authorise any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount of dues as fixed, ascertained and determined sum of money." Reference was made to the earlier decision of Supreme Court of Pakistan in the case Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384. Another larger Bench of Honourable Supreme Court comprising five Judges in the case of Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 held, inter alia, that the recovery of dues as arrears of land revenue by the Government machinery could only be set into motion after claim had actually ripened into dues and determined on the basis of some adjudication in accordance with law and justice. The rule laid down in the case of Abdul Latif (supra) and Sanaullah Khan was followed by a Division Bench of this Court in the case Raj Kumar and 3 others v. National Bank of Pakistan and another 1994 CLC 206. In this background, I am of the considered view that in order to claim priority by a Government agency, thus, depriving the decree-holders, it is required that the sum claimed is determined and ascertained which in the instant case has not been established by the Income Tax Department, Government of Pakistan.

17. These are some 12 execution applications arising from the decrees passed in the cases of Fatal Accidents Act, 1855. The decree-holders are the beneficiaries of the deceased which in fact were their bread-winners. Some o: the suits were instituted as far back as in the year 1988-89 and final decree was passed after a long judicial proceedings in the year 1995-96. It was a their instance that some 205 buses were attached and sold through the public auction conducted under the supervision of the Official Assignee and the Secretary Transport, Government of Sindh. Several advertisements were published in leading newspapers announcing the sale of K.T.C. buses. This public auction proceedings which started in the year 1987 took more than 1-1/2 years arid once the said amount was realised, the Income Tax Department has rushed to the Court and filed a simple letter of the Deputy Commissioner that they are entitled to this decretal amount. No doubt in order to run a Government the realisation of taxes and dues have become one of the important functions of the State but at the same time, it is also the duty of the State and the Government to provide food and shelter to these widows and children who have been deprived of their only bread-winner. Even after the disbursement of the decretal amount there remains a huge amount at the disposal of the Nazir. In addition to that, several immovable properties are still lying in the name of K.T.C. which are worth millions of rupees but the Income Tax Department has not taken any initiative to get their dues realised from such properties. They only want to intervene when the fruit is ripe for eating. What they want is effortless recovery of tax at the cost of these widows and orphans.

18. Some seven decree-holders have' filed separate applications claiming some additional amount as interest over and above the decretal amounts, These are C.M.As. Nos.1264 of 1999 in Exh.20/97. 1265 of 1999 in Exh.13/97, 1266 of 1999 in Exh.4/97, 1267 of 1999 in Exh.6/97, 1268 of 1999 in Exh.51/96, 1269 of 1999 in Exh.53/96 and C.M.A.1270 of 1999 in Exh.64/98. The total claim in all these seven applications comes to Rs.12,46,454. Since this Court is not sure about the correct calculation of the rate of interest, Nazir is directed to calculate the interest as granted to them in their respective decrees. However, till decision, this amount is to be retained.

19. As a result of ' the above discussion, it is ordered that Nazir will disburse the respective claims of decree-holders as earmarked by this Court and as mentioned above. The remaining amount of Rs.2,30,14,729 will go to the Income Tax Department against their claim. With the aforesaid observations, all applications and references stand disposed of.

Q.M.H./M.A.K./S-7/KOrder accordingly.