JUDGMENT <NAME>, J.

1. This case is stated by <ORG> under Section 25(1), Bihar Sales Tax Act, 1947.

2. The assessee is an incorporated company called <ORG>, whose registered office is at 94 Chittaranjan Avenue, Calcutta. For the eight quarters commencing from 1-10-1944, the Sales-tax Officer, Bhagalpur Circle, made an assessment of sales tax amounting to Rs. 250 plus a penalty of Rs. 375 for each of the eight quarters. The" assessee contended that the Sales-tax Officer had no jurisdiction to tax on the ground that the sale of the chemicals took place in Calcutta and not in Bihar and that the assessee was not a 'dealer' as contemplated by the Act. In a letter dated 9-12-1946 the assessee stated:

"The goods in question were supplied under orders of the Bhagalpur Municipality sent by post to this company in Calcutta and payment was made by cheque in Calcutta. Sale of goods is effected on the transfer of property therein. In our sale of alum to the Municipality the transfer of property in the goods (viz.- alum) way effected when the goods (viz., alum) were separeted and appropriated against the order of the Bhagalpur Municipality at this company's factory at Panihati (District 24 Parganas, Bengal). Hence the sale did not take place in Bihar. Further, company cannot be said to be dealer as denned in the Act."

3. The Sales-tax Officer thereafter made enquiries at the <ORG> offices and found that "the goods were always consigned by the assessee in the name of some officer of <ORG> and payments were made by cheques on the <ORG>, Bhagai pore branch."

The Sales-tax Officer held that the sales were completed in Bihar and the assessee was bound to register itself as dealer and to pay sales-tax on the sales made to <ORG> and Bhagalpore Municipality. For the period from 1-10-1944 up to 30-9-1946 the Sales-tax Officer computed the taxable turnover to be Rs. 16,000 per quarter. The assessment was made on 31-12-1946. Appeals were preferred to the Assistant Commissioner of Sales-tax who affirmed the decision of the Sales-tax Officer that the sales were completed in Bihar and the assessee had been properly taxed. The Assistant Commissioner of Sales-tax, however, remitted the penalty imposed in each case. The assesses applied in revision before the Commissioner but the spplication was dismissed. The assessee also moved <ORG> but the application was dismissed.

4. At the instance of the assessee <ORG> has referred the following questions of law for being determined by <ORG>:

(1) "Whether" on the facts and circumstances of the case the assessee is a dealer within the meaning of Section 2 (c) of the Bihar Sales Tax Act?" and (2) "Whether on the facts and circumstances of the case, there was any sale by the assessee in Bihar within the meaning of Section 2 (g) of the Bihar Sales Tax Act?"

5. Upon the first question Mr. <NAME> who appeared on behalf of the assessee pointed out that apart from the sales of chemicals to the Bhagalpore Municipality and <ORG> the assesse had sold chemicals to various dealers in Bihar but the method of sale was different. In this class of sales, the assessee had sent railway receipts to Messrs. <NAME> of Bhagalpore who realised the sale price from the parties before making over the railway receipts. The railway receipts were sent by <NAME> by value payable post to different dealers who were obliged to pay the price of the consignment before they obtained the railway receipts. In this state of facts, Mr. <NAME> conceded that the assessee had reserved the right of disposal under Section 25 (2), <ORG> & that the title to the goods did not pass in Calcutta but the title passed in Bhagalpore when the railway receipts were handed to the various dealers after payments of cash. Mr. <NAME>, therefore, did not seriously dispute that the assessee was a dealer within the meaning of Section 2 (c) of the Sales-tax Act and that the first question should be answered in the affirmative.

6. The second question is more difficult to answer. On behalf of the assessee, Mr. <NAME> presented the argument that the sales of chemicals to Bhagalpore Municipality and <ORG> were effected not in Bhagalpore but in Calcutta, that the transaction did not fall within the ambit of Section 2 (g), Sales-tax Act , and that the Sales-tax Officer had no authority to impose a tax on these sales. The learned counsel based his argument upon the findings of the Sales-tax Officer reproduced by <ORG> in the statement of the case--

"The Sales-tax Officer after personal enquiries found that the goods are always consigned by the company in the name of the Chairman or Vice Chairman or some such officer of <ORG> at Bhagalpore or any other station within Bhagalpore District and payments have always been made by cheque on the Bhagalpore branch of <ORG> and hence it was held that sales were always completed in Bihar".

Mr. <NAME> contended upon these facts that title passed as soon as the goods were appropriated in the assessee's factory at Panihati against the orders of <ORG> and the Bhagalpore Municipality. It was submitted that not merely did the title pass at Panihati but delivery was also effected in pursuance of the contract to the railway authorities at Panihati.

7. It was on the contrary argued by the Government Pleader that the contract of sale took place in Bhagalpore, that title to the goods passed at Bhagalpore and the transaction was rightly taxed under the Bihar Sales-tax Act. The argument was based on Section 4 , Contract Act , which states that "the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, and as against the acceptor, when it comes to the knowledge of the proposer".

The argument of the Government Pleader is that so long as the acceptance was not communicated by the assessee to the Bhagalpore Municipality or <ORG> the contract was not complete. It was contended that the communica-tion in this case was made when the railway receipt with respect to the goods was received by the Bhagalpore Municipality or <ORG> and the contract of sale was, therefore, completed at Bhagalpore. The argument cannot be however accepted as valid. Section 5 of the Indian Contract Act must be read subject to Section 8 which states that "performance of the condition of a proposal or the acceptance of any consideration for a reciprocal promise is an acceptance of the proposal"

There is in principle a material distinction between the acceptance of an offer which asks for a promise and an offer which asks for an act on the condition of the offer becoming a promise. In the formed case, where the acceptance is to consist of a promise, there must be communication to the proposer. But in the latter class of cases, where the acceptance is to consist of an act, as for example, despatching goods ordered by post, the rule is that no further communication of the acceptance is necessary than the performance of the proposed act. The distinction is recognised in Sections 5 and 8 , Contract Act . The legal position is correctly stated by <NAME> in -- '<NAME> v. <ORG>,' (1893) 1 Q. B. 256 at p. 269 (A): "One cannot doubt that, as an ordinary rule of law an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. But there is this clear gloss to be made upon that doctrine, that, as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if? he thinks it desirable to do so, and I suppose that there can be no doubt that where a person, in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; & if the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal with-out communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification".

In -- 'Brodgen v. Metropolitan Railway Co.', (1877) 2 AC 666 at p. 691 (B), Lord <NAME> stated the principle in similar terms:

"But I have always believed the law to be this that when an offer is made to another party, and in that offer there is a request express or implied that he must signify his acceptance by doing some particular thing, then as soon as he does that thing, he is bound. If a man sent an offer abroad saying: I wish to know whether you will supply me with goods at such and such a price, and, if you agree to that, you must ship the first cargo as soon as you get this letter, there can be no doubt as soon as the cargo was shipped the contract would be complete, and if the cargo went to the bottom of the sea, it would go to the bottom of the sea at the risk of the orderer,"

In my opinion, the argument of the Government Pleader on this branch of the case must therefore fail. It is manifest upon the facts found by the Sales-tax Officer that the contract of sale was effected in West Bengal.

8. If this view is correct, the question arises where the title to the goods passed to the buyer and where delivery took place. According to the statement of the case, the goods were consigned toy the assessee in the name of the Chairman or Vice-Chairman of <ORG>. The railway receipts were sent in the name of the Chairman or Vice-chairman and it is not the case of <ORG> that the railway receipts were sent by V. P. P. On the contrary, the Sales-tax Officer has found that the payments were made later on by cheque on the Bhagalpore branch of <ORG>. In this state of facts, the question arises where title to the goods passed. Section 23 (1), Sale of Goods Act , states that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Section 23 (2) is also important. Section 23 (2) provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. Upon the facts found in the present case, the assessee did not reserve the right of disposal and since there is an unconditional appropriation of the goods to the contract, the title to the goods passed as soon as the appropriation took place in West Bengal. It is manifest that the delivery also in the present case took place at Panihati as soon as the assessee made over the goods to the carrier. Section 39 (1), Sale of Goods Act , states that where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. In the present case, the railway receipts were made out in the name of <ORG> as consignee and the seller had not reserved any right of disposal since the railway receipts were not sent by V. P. P. 3 or against cash payments. It is clear that as regards the transactions with <ORG> or Bhagalpore Municipality delivery of the goods took place at Panihati in West Bengal.

In this context the learned Government Pleader referred to Section 32 and Section 50 , Sale of Goods Act . But these sections have no relevance on the question which is being examined. Section 32 states:

"Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller shall be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods".

But this section is subject to a contract to the contrary and in the present case the facts stated clearly indicate that there was an agreement that goods should be delivered first and payment was to be made afterwards. Section 50 relates to the right of 'stoppage in transitu'. It was argued by the Government Pleader that Section 50 would indicate that title of the goods did not pass till 1954 Fat./3 & 4 delivery was effected at Bhagalpore to <ORG>. The argument proceeds on a misconception. Section 50 has no bearing on the question of passing of title. On the contrary, the section applies only in a case where title to the goods has already passed to the buyer. For Section 46 (1) states--

"Notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law..... (b) in case of the insolvency of the buyer right of stopping the goods in transit after he has parted with the possession of them".

It is clear therefore that neither Section 50 nor Section 32 has any relevance in determining the question where title to the goods has passed.

9. The next branch of the argument presented on behalf of the State of Bihar is that even if title to the goods passed in West Bengal, the transaction would fall within the ambit of the Bihar Sales-tax Act. It was pointed out that the goods, were despatched to Bhagalpore and payments were made by cheque on the Bhagalpore branch of <ORG>. It was contended that these facts constitute a sufficient nexus or territorial connection which conferred jurisdiction on the Bihar legislature to impose tax. Reference was made to a decision of this Court in -- ' <CITATION> ', AIR 1953 Pat 87 (C) in support of the argument. But the ratio decidendi of that case was different. The question in that case was whether the second proviso to section 2 (g) as amended by Bihar Act 7 of 1951 was constitutionally valid, The amendment was to the following effect:

"The sale of any goods actually delivered in Bihar as a direct result of such sale for the purpose of consumption in Bihar shall be deemed for the purpose of this Act to have taken place in Bihar, notwithstanding the fact that under the general law relating to sale of goods, the property in the goods has, by reason of such sale passed in another State".

It was held by this Court that this amendment was valid in view of the provision of Article 286 (1) (a) of the Constitution, and also upon a general consideration of the scope of the jurisdiction of a legislature in the matter of taxation. In the present case, however, the question at issue is different. The question is not whether the Bihar legislature has constitutional authority to tax a sale in Bengal when the goods are despatched to Bihar. The question at issue is a matter of construction and not a matter of constitutional validity. The question is what is the intention of the framers of the 1944 Act whether upon a proper construction of the 1944 Act the authorities could validly impose a tax on the transactions in question? in order to answer the question, it is necessary to examine the various provisions of the Act. Section 2 (g) defines 'sale' to mean 'any transfer of property in goods for cash or deferred payment or other valuable consideration.....' Section 2 (c) defines 'dealer' to mean 'any person who carries on the business of selling or supply goods in Bihar, whether for commission, remuneration otherwise.

Section 2 (h) defines 'saleprice' to mean 'the amount payable to a dealer as valuable consideration for the sale or supply of any goods'. It was submitted on behalf of the State that a person who merely supplied goods in Bihar would

be a 'dealer' within the meaning of the Act though the transfer of title took place outside the <ORG>, But I am unable to accept this argument as correct. In my opinion, the word 'supply' cannot be interpreted in its literal absolute sense, but must be given a limited and qualified sense. In a case of this description, the rule of interpretation is noscitur a sociis'. The words, as they were, take colour and meaning from their context, that is to (say, the more general word is restricted to a sense analogous to tne less general word. In the present case, therefore, I hold that the word 'supply' in Section 2 (c) of the Act must be interpreted as to include the conception of sale.

10. This opinion is supported by consideration of other important provisions of the Act, Section 4 which is the charging section states that every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified. Section 4 , therefore, imposes tax only on sale and not on supply of goods. The title of the Act and the preamble are also important. The Act is entitled "To impose a tax on the sale of goods in Bihar: The preamble states:

"Whereas it is necessary to make an addition to the revenue of Bihar and for that purpose to impose a tax on the sale of goods in Bihar".

If Section 2 (c) is construed in the setting and context of the other important provisions of the Act it is clear that the conception of supply of goods must be interpreted so as to include the conception of sale. - So construed, supply is merely a form of sale and despatch and there can be no supply of goods in this sense unless there is a sale. As regards the meaning of 'sale', Section 4 (3) of the Sale of Goods Act may be compared with Section 2 (5) of Bihar Sales-tax Act. Section 4 (3), Sale of Goods Act , states that where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale. The section is similar in terms to Section 2 (g), Bihar Sales Tax Act, which defines 'sale' to mean 'any transfer of property in goods for cash or deferred payment or other valuable consideration'. Upon a review of the various provisions of the Bihar Sales-tax Act it is clear that the intention of the framers of the Act was to impose a tax on transactions where the transfer of title took took place in Bihar and there was no intention that tax should be imposed on sales which took place outside Bihar though the goods were despatched for the purpose of consumption in Bihar. The argument of the learned Government Pleader on this part of the case must therefore fail.

11. In the course of his argument, the Government Pleader laid great stress on the fact that the assessee had failed to submit his return and the assessment was therefore made by the Sales-tax Officer to the best of his judgment under the provisions of Section 10 (5), Bihar Sales-tax Act. It was submitted that no question of law would arise on an assessment made in this manner. In my opinion, the argument is misconceived. In an assessment made under Section 10 (5) the quantum may not be challenged but the legal basis or the legal principle on which the assessment is based is always open to challenge. It is true that the Sales-tax Officer makes an assessment under Section 10 (5) when the assessee has made default. But this does not mean that the assessment may be made capriciously or in an arbitrary manner. The very phrase 'best judgment' implies and imports a legal consideration of the facts relating to the assessment of the particular assessee. It is true that the Sales-tax Officer is not a Court but in making an assessment of sales-tax the Sales-tax Officer acts judicially and if he applies a wrong legal principle in making the assessment his decision can be questioned. Even in a case where the assessee fails to submit a proper return the Sales-tax Officer must proceed in a judicial manner. In -- 'Commissioner of Income-tax v. <NAME>', A. I. Rule 1937 PC 133 (D) <ORG> stated with reference to Section 23 (4). Income-tax Act :

"He (the Income-tax Officer) must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment and though there must necessarily be guess-work in the matter, it must be honest guess-work".

In this context, the following passage from the speech of Viscount <NAME> in -- '<ORG>', (1915) AC 120 (E), is also important--

"They (the Income-tax authorities) must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice".

In the present case it was contended on behalf of the assesssee that the Sales-tax Officer applied a wrong legal principle in making assessment of sales-tax as regards transactions between the assessee, and <ORG> and the Bha galpore Municipality. The question raised is a question of law within the meaning of Section 25 (1), Bihar Sales-tax Act, and <ORG> properly refer such question for the determination of <ORG>.

12. It was also submitted by the Government Pleader on behalf of the State of Bihar that there was no material in this case to properly determine the question of law raised by <ORG>. It was contended that the assessee did not produce the actual correspondence with the Bhagalpore Municipality and <ORG> and the exact terms of the contract of sale were therefore not available. There is not much point in this argument for, it is the admitted case that the Sales-tax Officer inspected the records in the <ORG> Offices and as a result of such inspection he reached the following findings:

"It has been found that the goods viz.., alum, bleaching powder and medicines etc, are always consigned by the Company in the name of Chairman and Vice-chairman and some such officer of <ORG> at Bhagalpore or any other station within Bhagalpore District and the payments have always been made by cheques on the <ORG>, Bhagalpore branch. All this will prove that the sales are always completed in Bihar. The crucial test of this also is that the company does not claim to have paid sales-tax in Bengal which would have been the case if the sales had really been in Bengal. I am sure that Company did not pay sales-tax in Bengal claiming the sales to have been despatched outside Bengal".

These findings were reached by the Sales-tax Officer as a result of his inspection of the correspondence between the assessee and <ORG> and the Bhagalpore Municipality which correspondence was available in the offices of <ORG> at Bhagalpore. It is clear, therefore, that the material facts have been investigated by the taxing authorities and the terms of the contract which the assessee did not produce were actually available in the offices of <ORG> at Bhagalpore.

13. For the reasons expressed I think that on the facts and circumstances of the case the asses-see was a dealer within the meaning of Section 2 (c), Bihar Sales-tax Act. As regards the second question, I am of opinion that the sales of chemicals to the Bhagalpore Municipality and to Bhagalpore <ORG> for which tax has been assessed were effected in West Bengal and as such were not liable to be taxed in Bihar under the pro-visions of the Bihar Sales-tax Act of 1944. As regards the other transactions of sale for which the railway receipts were sent to Messrs. <NAME> of Bhagalpore, I am of opinion that they have been properly taxed as they constitute 'sales' within the meaning of the Bihar Sales-tax Act, 1944.

14. I would answer the questions formulated by <ORG> in the manner indicated above.

15. My learned Brother, <NAME>, <NAME> is of opinion that the second question does not cover the sale of chemicals to <ORG> and the Municipality of Bhagalpore and that it is not necessary for <ORG> to decide whether the sale of chemicals to <ORG> and the Municipality are taxable under the Bihar Sales-tax Act. With deference to my learned Brother, I am unable to accept this view. This question of sales to the Bhagalpore Municipality and <ORG> was specifically raised by the assessee before the Sales-tax Officer. It is stated by Mr. <NAME> on behalf of the assessee that the sale of chemicals to the Bhagalpore Municipality and <ORG> constitute the major part of the taxable turnover determined by the Sales-tax Officer in this case. The Sales-tax Officer made enquiries from <ORG> and the Bhagalpore Municipality on the question whether the sales took place in Bengal as claimed on assessee's behalf. The question is also expressly dealt with by <ORG> in formulating the statement of the case. In their application under Section 5 the assessee asked that a reference should be made of nine questions including Question No. 4--

"Can the transaction of the assessee with the Bhagalpur Municipality and <ORG> be termed to be a sale which has taken place in Bihar?"

The <ORG> did not refuse to refer this question but after hearing the parties consolidated all the points raised by the assessee into two questions- (1) "Whether on the facts and in the circumstances, the assessee is a dealer within the meaning of Section 2 (c), Bihar sales-tax Act?" and (2) "Whether on the facts and in the circumstances of the case there was any sale by the assessee in Bihar within the meaning of Section 2 (g), Bihar Sales-tax Act?"

The statement of the case made by <ORG> contains all the material facts relating to the transaction of sale with the Bhagalpore Municipality and <ORG>. In my opinion, the second question formulated by <ORG> directly covers the sales made by the assessee to the Bhagalpore Municipality and <ORG> on which tax has been levied.

16. Even if the question has not been happily framed, I think that <ORG> is competent to reframe and resettle the question formulated by <ORG> for answering it so as to bring out the real issue in controversy between the parties. In the present case, the real question at issue between the assessee & the <ORG> is with respect to the transaction of sales with the Bhagalpore Municipality and <ORG> which constitute the major part of the taxable turnover determined by the Sales-tax Officer. There is nothing in Section 21 (5), Bihar Sales-tax Act of 1944, to suggest that the duties of <ORG> are confined to answer the question of law strictly in the grammatical form formulated by the <ORG> irrespective of whether it is the real question at issue between the taxing authorities and the assessee. It is well settled by a long line of authorities that <ORG> may at the hearing of the reference resettle and re-frame the issue so as to bring out real point in issue between the assessee & the taxing authorities -'(see <CITATION> ', AIR 1929 All 819 (F); -- ' <CITATION> .', AIR 1937 Lah 721 at p 732 ( <CITATION> ', (1951) 20 ITR 432 at p 440 (Cal) (H). -- ' <CITATION> ', AIR 1953 Cal 368 at p 370 (I) -- '<ORG> v. Commissioner of Income-tax', A. I. Rule 1952 Bom 151 at p 156 (J).

17. In this connection my learned Brother has referred to -- ' <CITATION> ', AIR 1940 PC 158 (K) and -- '<ORG> In the matter of,' AIR 1951 Pat 174 (L). In my opinion, the principle of these cases has no bearing on the present case. In -- 'AIR 1940 PC 158 (K)' <ORG> refused to answer the question on the ground that it was purely academic.In the second case, -- 'A. I. Rule 1951 Pat 74 (L)' the assessee had asked <ORG> to refer the question whether there was evidence to support the finding of the <ORG> that cash credits were secreted profits of the assessee. The <ORG> had refused to refer the question on the ground that there was no point of law involved. The assessee attempted to raise the same question in <ORG>, But <ORG> refused to entertain the question on the ground that the necessary facts have not been stated by the <ORG>. In the present case, the position is manifestly different. The material facts have been stated by <ORG> in the order of reference with respect to the sales made by the assessee to the Bhagalpore Municipality and <ORG>. The question is, in my opinion, directly raised by <ORG> in the statement of the case and it is not only competent to <ORG> but it is the duty of <ORG> to answer the question.

Rai, J.

18. This is a reference under Section 25 (1), Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947).

The reference has invited answers by this Court to the following questions. (After quoting the questions stated in para 15 above, the judgment proceeds thus). From the statement of the case, it appears that the assessee, <ORG>, Calcutta, was sssessed to sales tax for 8 quarters beginning from the quarter ending on 31-12-1944 up to the quarter ending on 30-9-1946. The assessee was assessed by <ORG>, Bhagalpur Circle, to sales tax amounting to Rs. 250 plus a penalty of Rs.

375, total Rs. 625, for each of the 8 quarters in question, under the provisions of Section 10 (5), Bihar Sales Tax Act 1944. The assessment order of the Sales Tax Officer was upheld by the Appellate and the Revisional authorities.

19.The assessee had supplied goods to a number of customers of the province of Bihar including <ORG> and the Municipality of Bhagalpur. The railway receipts in respect of the consignments sent to the Municipality and <ORG> stood in the names of either the Chairman or the Vice-Chairman or some other officer of the Board as consignee. The consignments to other consumers were invariably despatched by the Company to 'self and the price thereof was realised through Messrs. <NAME> and sons of Bhagalpur, who, for all intents and purposes acted as the agents of the assessee. In some cases the railway receipts were sent per V. P. P. <ORG> and <ORG> paid the price of the articles supplied to them by cheques drawn on <ORG> Bhagalpur Branch. According to the statement of the case, the Company has been admittedly selling goods worth several lacs in the Province of Bihar, yet it has not got itself registered as a "dealer" in accordance with the provisions of the Bihar Sales Tax Act 1944. The assessee did not submit any return with the result that the Sales Tax Officer had to make the assessment in accordance with the previsions of Section 10 (5) of the Act.

20.It is agreed on all hands that the questions referred to this Court are to be answered with reference to the provisions of the Bihar Sales Tax Act, 1944.

21.In order to appreciate the points raised at the <ORG> it is necessary to quote the relevant portion of some of the definitions provided in the Act.

ction 2. In this Act, unless there is anything repugnant in the subject or context,

(c) "dealer" means any person who carries on the business of 'selling or supplying goods in Bihar', whether for commission, remuneration or otherwise and includes any firm or a Hindu or a Hindu joint family, and any society, club or association which sells or supplies goods to its members;

(g) "sale" means, with all its grammatical variations and cognate expressions any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge Provided that a transfer of goods on hire-purchase or other instalment system of payment shall, notwithstanding the fact that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale.

Provided further that notwithstanding anything to the contrary in the Indian Sale of Goods Act , 1930, the sale of any goods which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in Section 4 of that Act is made, shall, whenever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in Bihar,

(h) "sale price" means the amount payable to a dealer as valuable consideration for

(i) the 'sale or supply of any goods', less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before, delivery thereof, other than the cost of freight or delivery or the cost of installation when such cost is separately charged, (1) "turnover" means the aggregate of the amounts of sale prices received and receivable by a dealer in respect of 'sale or' supply of goods' or carrying out of any contract, effected or made during a given period".

22.In view of the above quoted provisions of the Act the learned counsel for the assessee did not press that the Company was not a 'dealer' within the meaning of Section 2 (c) of the Act. Prom the statement of the case also, it is clear that the Company has been selling and supplying goods worth lacs in Bihar and as such the first question must be answered in the affirmative.

23.In order to formulate an answer to the second question it is necessary to refer to the relevant portion of Section 4 (1) of the Act which runs thus:

"4(1) Subject to the provisions of sections 5 and 6 and with effect from such date as the Provincial Government may, by notification in the official Gazette, appoint, being not earlier than thirty days after the date of the said notification, every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeding Rs. 5,000 shall be liable to pay tax under this Act on sales effected after the date so notified:"

Learned counsel for the Company urged that in order to attract the provisions of Section 4 (1) of the Act it must be established that the sale had taken place in the province of Bihar. According to him, as soon as the Company had set apart the articles for which orders had been placed by <ORG> and the Municipality, the sale will be deemed to have been completed. He submitted that the sale will be deemed to have taken place at Panihati in Bengal where the factory of the assessee is situated and where the consignment was delivered to the railway Company. In this connection he referred to Section 23 , Sale of Goods Act , 1930 which runs thus:

"(1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally "appropriated to the contract, either by the seller with the assent of the buyer" or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.

(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract."

In support of his contention, Mr. <NAME> also relied on the decisions in the cases of -- '<NAME> & Son v. William Lane Gough', (1896) AC 325 (M), --"The Badische Anilin and Soda Fabrik v. The Basle Chemical Works Bindschedler', (1898) AC 200 (N);

-- 'Deoraj v. <NAME>', AIR 1926 All 679 (O)

-- Firm Amar Singh Dhumi Mal v. Sharaf-ud-din', A. I. R. 1925 Lah 555 (P).

In my opinion, these cases have no application to the point under consideration. It is, however, not necessary for me to discuss them in detail here, because, on the admitted case of the assessee company itself, the second question also should be answered in the affirmative. It has been conceded by Mr. <NAME> that according to Section 25 , Sale of Goods Act , these articles will be deemed to have been sold in Bihar which had been despatched to various destinations in the Province of Bihar in the name of the Company itself as consignee and the price of which had been realised through V. P. P. or through the agency of Messrs. <NAME> and sons of Bhagalpur.

24. I agree with the learned counsel for the <ORG> that it is not necessary for this Court to express any opinion regarding the sale of chemicals and medicines to <ORG> and <ORG> alone, as the second question referred to this Court for answer is about any sale and not about a particular sale. No such distinction appears to have been made before the Sales Tax Officer, the Assistant Commissioner of Sales Tax or before <ORG> at the time of the hearing of the revision petition filed on behalf of the assessee. The order of the Assistant Commissioner of Sales Tax definitely mentioned the following grounds urged on behalf of the assessee for exemption from taxation under the Bihar Sales Tax Act, 1944:

"(1) It is not a dealer within the meaning of Section 2 (c) of the Bihar Sales Tax Act 1944.

(2) That the sales invariably took place at Calcutta and the Company ceased to be the owner of the goods after the despatch at Calcutta.

(3) That the payments were always received at <ORG>.

(4) That the 'sales were never' completed in Bihar.

(5) That the "sales by the company were not a "sale" within the meaning of Section 2(g) of the Act."

Prom ground Nos. 4 and 5 quoted above, it is quite clear that according to the contention of the assessee all sales had taken place in Bengal and none of them had taken place in Bihar to attract the operation of the Bihar Sales Tax Act. Before the Commissioner of Commercial Taxes also, the same position was taken by the assessee. The relevant portion of the order of the Commissioner of Commercial Taxes runs thus:

"The main points taken before me were, (1) that Messrs. Bengal Chemical and <ORG> are not "dealers" as defined in the Sales Tax Act ; (2) that "the sales for which tax has been imposed in this case were effected in Calcutta" and therefore not liable to assessment in Bhagalpur (3) that in similar cases of import of medicines, drugs, etc. by other firms functioning outside Bihar no tax is assessed."

Similar position appears to have been taken by the assessee before the Member of <ORG>, Bihar, also as appears from the following portion of the resolution of the Board: "In this revision application in a sales tax case the main contentions of the petitioners are:

(1) That Messrs. <ORG> are not 'dealers' as defined in the Sales Tax Act , and (2) That "the sales for which tax has been assessed in this case were effected in Calcutta", and as such were not liable to assessment in Bhagalpur."

25. It appears that, for the first time, in their application under Section 25 (1), Bihar Sales Tax Act, 1947, the assessee introduced the following point as point no. 4:

"Can the transaction of the assesses with <ORG> and <ORG> be termed to be a sale which has taken place in Bihar?"

The Member of <ORG> in dealing with this application observed as follows: "The petitions originally raised 9 questions to be answered which have subsequently been summarised into 2 after hearing, namely, (1) whether on the facts & in the circumstances, the assessee is a dealer within the meaning of Section 2(c) , Bihar Sales Tax Act; and (2) whether on the facts and in the circumstances of the case "there was any sale by the assessee in Bihar" within the meaning of Section 2 (g), Bihar Sales Tax Act."

Thus I am of opinion that the assessee is not entitled to ask us to give any answer in respect of sales or supplies to <ORG> and <ORG> alone as distinct from sales and supplies to other customers within the Province of Bihar. In my opinion, this question does not arise out of the relevant order as required by Section 21 CD, Bihar Sales Tax Act, 1944 and Section 25 (1), Bihar Sales Tax Act, 1947. As was held in -- ' <CITATION> ', AIR 1951 Pat 29 (Q), the function of this Court is merely consultative or advisory with reference to the question submitted to it for answer. We are not required to express any opinion on matters not covered by the questions and not arising out of the order. The jurisdiction exercised by this Court under the Bihar Sales Tax Act is similar to that exercised under Section 66 , Income-tax Act . In -- ' AIR 1940 PC 158 (K)' their Lordships of <ORG> while defining the function of <ORG> under Section 66 of the Income-tax Act observed: "In these circumstances their Lordships do not think it would be right to depart from the well established practice of the <ORG> to refuse to decide a question which is purely academic. The function of <ORG> in cases referred to it under Section 66 of the Act is advisory only, and is confined to considering and answering the actual question referred to it".

26. In --- 'AIR 1951 <NAME> (L)' <NAME> J.with whom <NAME> J. had agreed observed as follows:

"On behalf of the assessee, Mr. <NAME> addressed the argument that there was no evidence on which the <ORG> could have held that the cash credits were secret profits of the assessee. But this question has not been formulated by the Appellate <ORG> and no statement of the case has been made thereon. It is therefore not open for <ORG> to examine this question in this case. It is of importance to state that the jurisdiction with which <ORG> is invested under the Income-tax Act is of an exceptional nature and in hearing the reference <ORG> has seisin only of such question of law as has been duly raised before the Appellate <ORG> and upon which there is statement of the case."

The assessee cannot at this stage ask us to raise fresh questions and ask for a statement of the case on that question, because that right of the assessee is barred by limitation.

27. With all respect to my learned brother, I am afraid I am not in a position to give my assent to the answer proposed by him to the second question. I would therefore answer both the questions in the affirmative.

<NAME>, J.

.28. This case has come to me on a difference of opinion between two of my learned brothers, <NAME> and <NAME>, <NAME>. The facts of the case are succinctly stated in the judgment of <NAME>, <NAME> and I do not think that it is necessary that I should restate the facts in detail. I shall content myself with stating such of the facts as are necessary for the determination of the points which have been canvassed before me by learned Counsel for the parties.

29. The assessee company was assessed to sales tax for eight quarters commencing from 1-10-1944 and up to 30-9-1946. The assessment was made on 31-12-1946. An appeal was preferred to the Assistant Commissioner, who affirmed the decision of the Sales Tax Officer but remitted the penalty imposed. The assessee applied in revision before the Commissioner, but the application was dismissed. The assessee then moved <ORG> but without success. Then, at the instance of the assessee, <ORG> referred two questions of law for determination by <ORG> under the provisions of Section 25 , Bihar Sales Tax Act, 1947. The order of reference is dated 29-3-1951, and the questions which <ORG> have referred are: (1) whether on the facts and in the circumstances, the assessee is a dealer within the meaning of Section 2(c) , Bihar Sales Tax Act; and (2) whether on the facts and in the circumstances of the case, there was any sale by the assessee in Bihar within the meaning of Section 2(g) , Bihar Sales Tax Act. It may be stated here that it is admitted by the parties that the questions have to be answered with reference to the provisions of the Bihar sales Tax Act , 1944, which was the law in force during the relevant period. With regard to question No. 1, there was no difference of opinion. Both my learned brothers answered that question in the affirmative. With regard to the second question, however, there was a difference of opinion. <NAME>, J. proposed the following answer to the second question: "As regards the second question, I am of opinion that the sales of chemicals to the Bhagalpore Municipality and to Bhagalpore <ORG> for which tax has been assessed were effected in West Bengal and as such were not liable to be taxed in Bihar under the provisions of the Bihar Sales-tax Act of 1944. As regards the other transactions of sale, for which the railway receipts were sent to Messrs. <NAME> of Bhagalpore I am of opinion that they have been properly taxed as they constitute 'sales' within the meaning of the Bihar Sales-tax Act of 1944". <NAME>, J., however, was of the view that no answer should be given with regard to particular sales, because the second question as framed did not relate to individual sales; nor was it necessary for the <ORG> to give an answer with regard to individual sales, because in his opinion, such a question did not arise out of the order of assessment or the order passed on appeal and revision. He said:

"Thus, I am of opinion that the assessee is not entitled to ask us to give any answer in respect of sales and supplies to <ORG> and <ORG> alone as distinct from sales and supplies to other customers within the Province of Bihar. In my opinion, this question does not arise out of the relevant order as required by Section 21(1) , Bihar Sales Tax Act, 1944 and Section 25(1) of the Bihar Sales Tax Act, 1947".

As some of the sales made by the assessee admittedly took place in Bihar, <NAME> was of the opinion that the second question should also be answered in the affirmative, without making any distinction in respect of the sales of Chemicals made by the assessee to <ORG> and <ORG>. This, in effect is the difference of opinion between two of my learned bretheren on which the case has come to me.

30. The first point to be determined is whether in answering the second question, it is necessary to consider the sales of chemicals made by the assessee to <ORG> and <ORG> of Bhagalpur. Mr. <NAME>, appearing for the State of Bihar, has supported the view of <NAME>, J. and has contended that the second question should be answered not with reference to particular or individual sales but with reference to sales in general. He has emphasised, the words "any sale" occurring in the second question. He has argued that the assessee took up the attitude that he was not a dealer at all and was not liable to tax in Bihar; he did not raise the question of his liability on individual sales till a much later stage when he asked for a reference to be made to <ORG>; therefore, the question of liability on individual sales does not arise out of the order of assessment or the order in appeal or revision therefrom. He has submitted that as the assessee did not submit any returns, the assessment was a 'best of judgment' assessment under Section 10 (3), Bihar Sales Tax Act, 1944. According to Mr. <NAME>, the only contention which the assessee raised up to the stage of revision was whether he was assessable at all and not the question whether a particular assessment was arbitrary. He has further argued that as the assessee did not file any return or the necessary correspondence with <ORG> and <ORG> of Bhagalpur, this <ORG> has not the necessary facts to answer a question of law with regard to individual or particular sales.

31. These arguments appear to have been pressed before this Court when the case was heard by <NAME> and <NAME>, JJ. My learned brother <NAME>, J. has dealt with these arguments and, as I am in agreement with him. I propose to give the reasons for my view very briefly.

32. The order of assessment under Section 10 , Bihar Sales Tax Act, 1944 itself shows that the assessee was assessed on the sale of chemicals such as alum, bleaching powder and other medicines to the Bhagalpur Municipality and <ORG>. Paragraph 3 of the assessment order states, in clear terms, that the assessee denied his liability to pay tax on the sales of the aforesaid chemicals to the Municipality and <ORG> on the ground that the sales did not take place in Bihar. The Sales Tax Officer said that he had made enquiries in the Municipal office as also <ORG>, and it appears from his order that he had seen the necessary correspondence on the subject. He proceeded on the footing, as he said in his order, that the sales were completed in Bihar. It is obvious, therefore, that the individual sales of chemicals to the Muni-cipality and <ORG> of Bhagalpur were the very basis on which the assessment was made, and at the very earliest opportunity the assessee took the point that the sales did not take place in Bihar and he was not, therefore, liable to tax on those sales under the provisions of the Bihar Sales Tax Act, 1944. In this circumstance, it is impossible to accept the contention that the sales of chemicals to <ORG> and the Municipality of Bhagalpur and the alleged liability of the assessee thereon, did not arise out of the assessment order. The order of the Assistant Commissioner of Sales Tax, Bhagalpur, as also the order of the Commissioner of Commercial Taxes, Bhagalpur, show that the assessee all along pressed the point that the sales to the Bhagalpur Municipality and <ORG> were sales which did not take place in Bihar. Before <ORG> also, the same point was pressed, namely, that the sales for which tax was assessed were effected in Calcutta and as such the assesses was not liable to assessment in Bhagalpur. I must, therefore, overrule the contention that the question of individual or particular sales to <ORG> and the Municipality of Bhagalpur did not arise out of the order of assessment or the order passed in appeal or revision therefrom.

33. As to the point that the necessary facts are not available for answering the question of law as to the sales of chemicals to the Bhagalpur <ORG>ity and <ORG>, this point has been dealt with effectively by <NAME>, J., who rightly pointed out that the Sales Tax Officer himself inspected the records in the <ORG> and <ORG> Offices, as a result of which he came to certain findings embodied in the order of assessment. Those findings give the necessary facts for answering the question of law. It is not now open to the State of Bihar to say that the necessary correspondence has not been produced; the necessary correspondence and the material facts arising therefrom were investigated by the taxing authorities who have stated those facts very clearly, on which we have to determine the question of law.

34. I also agree with my learned brother <NAME>, <NAME> that even if the second question, as formulated by <ORG>, is somewhat wide and requires modification, it is open to this Court to resettle and reframe the question to bring out the real point in issue between the assessee and the faxing authorities. In this case, the real point in issue between the assessee and the taxing authorities, was and has all along been, the question whether the sales of chemicals to the Municipality and <ORG> were sales in Bihar on which the assessee was liable to pay sales tax. I do not see how the court can refuse to answer that question merely because <ORG> has chosen to frame the second question in wider terms. I fully agree with <NAME>, <NAME> that the question of the liability of the assessee to tax on the sales to the Municipality and <ORG> is covered by the second question, and this court should give an answer to it.

35. Mr. <NAME> has then contended that on such facts as have been found by the taxing authorities, the sales of chemicals to <ORG> and the Municipality of Bhagalpur were sales which took place in Bihar; therefore, the answer to the second question should be in the affirmative. Mr. <NAME> had developed his argument on this point in the following way. He has pointed out that Sales of Goods Act , 1930 does not deal with the "place of sale"; it deals with such subjects the formation of a contract of sale of goods, effects of such a contract, performance for the contract, rights of the unpaid seller against the goods &c. He has pointed out that Section 19 of the said Act states that where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred and unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Mr. <NAME>'s argument is that if intention is the determining factor, then there are no sufficient materials on the record from which that intention can be inferred. He has further argued that the expression "sale" may be understood in the technical or legal sense as the transfer of the right of property in goods as defined in Sale of Goods Act ; or, it may be understood in a popular sense meaning merely the transaction of sale, irrespective of when the property in the goods passes. His contention is that as a matter of construction, the word "sale" in Bihar sales Tax Act , 1944 should be taken to have been used in the popular sense; furthermore, he has argued that the business of supplying goods in Bihar will make the assessee a dealer within the meaning of Section 2(c) , Bihar Sales Tax Act, 1944 and will make him liable to tax under the charging section, namely, S. 4 of the Act.

36. I proceed now to consider these arguments. As to Section 19 , Sale of Goods Act , it is sufficient to state that the section itself says that unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 23 is relevant for our purpose. The following facts have been found in this case by the taxing authorities, namely, that <ORG> and the Municipality of Bhagalpur ordered alum, bleaching powder and certain medicines from the assessee company; the orders were received in Calcutta; with the implied consent of the buyer, the assessee company unconditionally appropriated the goods, in a deliverable state, to the contract at their godown at Panihati and made them over to a common carrier for despatch to the Municipality and <ORG>; the Municipality and <ORG> received the goods and took delivery; the payments were made subsequently by means of cheques to the branch of <ORG> at Bhagalpur. On these facts; it seems clear to me that under Section 23 , Sale of Goods Act , the property in the goods passed at Panihati in Bengal. The assessee company delivered the goods to the common carrier for the purpose of transmission to the buyer and did not reserve the right of disposal; therefore, he would be deemed to have unconditionally appropriated the goods to the contract. The facts as round by the taxing authorities do not show that there was anything else in the conduct of the parties which showed a contrary intention. The argument based on Section 19 , Sale of Goods Act , 1930 is not, therefore, available to the State of Bihar.

37. On the question of construction, I should refer to the definition of the word "sale" in Section 2(g) , Bihar sales Tax Act , 1944. That definition itself shows that <ORG>, in their wisdom, defined "sale" to mean "any transfer of property in goods for cash or deferred payment or other valuable consideration".

There is a proviso which merely gives an exception, and proves that sale primarily means a transfer of property in goods. Certain amendments were made subsequently in 1947, 1948 and thereafter. We are not, however, concerned with those amendments. Sale, according to the definition in the Act of 1944, means in effect a transfer of property in goods. The argument that the expression "sale" should be taken in the popular sense found favour with <ORG> in -- ' <CITATION> ', AIR 1953 Mad 91 (R). That case went up to <ORG>, and their Lordships reversed the decision of <ORG>. The decision of the supreme Court has not yet been reported, but a copy of the judgment has been made avail-

able to me by learned counsel for the State of Bihar. The decision was given in -- 'Poppatlal Shah v. State of Madras', Criminal Appeal No. 92 of 1952 since reported in AIR 1953 SC 274 (S). Their Lordships said:

"Unmistakably the stress is laid in this definition on the element of transfer of property in a sale and no other. The language gives no indication of the popular meaning of sale, in which, according to <ORG>, the word was used."

For an identical reason, the argument that the word "sale" has been used in the popular sense in the Bihar Sales Tax Act, 1944 cannot be accepted.

38. Mr. <NAME> has then argued that on a proper construction of the provisions of the Bihar Sales Tax Act, 1944, the liability to pay a tax is not confined, under those provisions, to sales in Bihar. He has, particularly, referred to the definition of a "dealer" in Section 2(c) , "sale-price" in Section 2(h) , and the charging section, namely, Section 4 of the Act. His contention is that the scheme of the Bihar Sales Tax Act, 1944 is that even if a person carries on a business of supplying goods in Bihar, he is liable to be taxed.

39. It should be made clear at the very outset that there is no dispute that <ORG> can pass taxing legislation imposing taxes on transactions concluded outside the Province, provided that there is a sufficient and real territorial nexus between such transactions and the taxing Province. The question that I am considering here is not a question of the constitutional validity of such a legislation; the question I am considering is the much narrower question of construction, namely, what is the true scope and meaning of the provisions of the Bihar Sales Tax Act, 1944. The Act is entitled, " An Act to impose a Tax on the sale of goods in Bihar." The preamble states: "Whereas it is necessary to make an addition to the revenues of Bihar, and for that purpose to impose a tax on the sale of goods in Bihar, etc."

The charging section Section 4 , states, inter alia, that after the appointed date, every dealer whose gross turnover during the year exceeds a particular amount shall be liable to pay tax under the Act on sales effected after the date so notified. It is no doubt true that the definition of a "dealer" includes a person who carries on the business of supplying goods in Bihar, and the definition of the expression "sale-price" means the amount payable to a dealer as valuable consideration for, amongst, other things, supply of any goods in Bihar.

40. The question is whether the word "supplying" or "supply" should be interpreted "noscitur a sociis", that is, that meaning should be given to the word which it shares with the word "sale" occurring before it, on the principle laid down by Lord <NAME> that "copulatio verborum indicat ac-ceptationem in eodum sensu" the coupling of words together shows that they are to be understood in the same sense. I am in agreement with my learned brother <NAME>, J. that the word "supply" or "supplying" should be interpreted in association with the word "sale". Assuming, but without deciding, that the Bihar Sales-Tax Act. 1944 also contemplated to bring within its purview such persons who carried on the business of supplying goods in Bihar on a commission basis, it seems to me that the present assessee cannot be brought under a category. On the facts found, he sold the goods to the Municipality and <ORG> of Bhagalpur. So far as he is concerned, there was no question of supplying goods on a commission basis without selling them. If his sales did not take place in Bihar, he was not liable to tax under the provisions of the Bihar Sales Tax Act, 1944. That seems to me to be clear enough from the charging section, namely Section 4 of the Act. I may observe that their Lordships of <ORG> said in '<NAME> case, (S)':

"It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of the legislature and indicate the scope and purpose of the legislation itself. The expression 'sale of goods' is a composite expression consisting of various ingredients or elements. Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is not completed or concluded unless the purchaser becomes the owner of the property. The question is what element or elements have been accepted by <ORG> as constituting a sale in the province upon which it is the object of the statute to levy tax."

I have already held, that the provisions of the Bihar Sales Tax Act, 1944 show that the emphasis is on the element of the transfer of property in goods for cash or deferred payment or other valuable consideration; in other words, the provisions of the Bihar Sales Tax Act, 1944 imposed a tax on sales in Bihar, that is, the transfer of property in goods for cash or deferred payment or other valuable consideration in Bihar. That being the position, the assessee was not liable to tax on sales which were effected outside Bihar. The question whether he paid tax in Bengal or not is in my opinion, irrelevant. We must construe the provisions of the Bihar Sales Tax Act, 1944 as they stood during the relevant period, and on that construction the liability of the assessee must foe determined.

41. For the reasons given above, I would answer the second question in exactly the same way as it has been answered by my learned brother Ramaswami, J.


PETITIONER: <NAME> AND <NAME>. Vs. RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT: 25/10/1968 BENCH: ACT: Criminal Procedure Code 1898, ss. 207 ,A and 209--Committal proceedings--If Magistrate should be satisfied as to guilt of accused or only that there is some credible evidence to sustain a conviction before making order of commitment.--Circumstances in which <ORG> justified in interfering with committal in revision. HEADNOTE: On a complaint filed by 'the Registrar of Companies, and after an investigation by the Police ordered by the Chief Presidency Magistrate, Calcutta, proceedings were instituted against the appellants for conspiring to commit criminal breach of trust in respect of a company's funds. After a large number of witnesses were examined and several documents were tendered in evidence, the Magistrate committed the accused to stand trial for offences under s. 120B read with Sections 409 , 477A I.P.C. before <ORG>. A revision application against the order of committal was rejected in limine by the <ORG>. In appeal to this Court it was contended on behalf of the appellants that there was no evidence on which the order of commitment could be made and that under s. 209 (1) Cr. P.C., the charge may be framed only if in the view of the committing Magistrate the evidence on record is sufficient to justify conviction of the accused. HELD: Dismissing the appeal: On the facts, it could not by said that there was no evidence on which a charge could be framed against the appellants or that the evidence was so totally unworthy of credit that are order recording the conviction against the accused could not be made.. Although in terms s. 209 'applies to cases which are instituted otherwise than on a .police report, the principle underlying that section also applies to cases which are instituted on a police report. A Magistrate holding an inquiry has to see whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the' case. [525 A--C] Normally the <ORG> in a revision application flied against the order of commitment under s. 207A will not enter upon a reappraisal of the evidence on which the order of commitment is made. The <ORG> would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged. But in other cases the trial before <ORG> should be allowed to run its course. [522 G--523 B] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 129 of 1966.

Appeal by special leave from the judgment and order dated March 21, 1966 of <ORG> in Criminal Revision No. 309 of 1966.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, <NAME> and <NAME> were the promoters, and <NAME> was the first Chairman of <ORG> of <ORG> Messrs. <ORG> of which <NAME> was the sole proprietor became the managing agents' of the Company in 1945. On July 2, 1951, <ORG> of which also <NAME> was the principal Director took over the managing agency.

The Registrar of Companies, West Bengal filed a complaint in the Court of the Chief Presidency Magistrate alleging that sometime between March 1, 1945 and December 31, 1947 a sum of .Rs. 7,23,031-9-6 was advanced by the. Company to the managing agents <ORG>; that on July 2, 1951 <ORG> resigned from the managing agency and <ORG> took over the managing agency; that <NAME> was at all material times a director of the company and also a director of <ORG> and the sole proprietor of <ORG>; and that the complainant had reason to believe that <NAME> with other directors of the company had committed offences under ss. 86-D and 87-D of the Indian Companies Act, 1913. The complainant requested that a through investigation .be made in the matter. The Chief Presidency Magistrate, Calcutta, referred the case to the police for investigation.

In the course of investigation of the complaint referred to him, Sub-Inspector <NAME> filed a First Information against eight persons (including the five appellants in this appeal) charging them with having, conspired to commit criminal breach of trust in respect of the company's funds, falsification of accounts and making false returns, balance-sheets and accounts, and in furtherance of the object of the conspiracy with committing offences punishable under ss. 409 and 477A I.P. Code and under s. 282 of the Indian Companies Act, 1913. After investigation, Sub-Inspector <NAME> submitted on February 29, 1958, a report under s. 173 of the Code of Criminal Procedure in the Court of the Chief Presidency Magistrate for those offences against seven persons including the five appellants.

The Presidency Magistrate, <ORG>, to whom the case was transferred for trial, rejected the contention raised by counsel for the defence that to a charge made against a director in relation to the affairs of the company, the Indian Penal Code can have no application, and the prosecution, if any, may be instituted under the provisions of the Indian Companies Act alone. The Magistrate also held that it was open to the police officer to whom the case was referred for investigation to submit a charge sheet of his own initiative and that the <ORG> had jurisdiction to enquire into the charge so made without the sanction of the High <ORG>. A revision application was filed in the High <ORG> of Calcutta against that order, but the application was rejected.

Proceedings were then resumed by the Magistrate on December 5, 1961, and a large number of witnesses were examined before him and several documents were tendered in evidence. On December 3, 1965, the Presidency Magistrate committed the accused to stand trial for offences under ss. 120B read with 409 & 477A I.P. Code before <ORG>. He observed:

"....having regard to the entire evidence on record and facts and circumstances of the case, I am convinced prima facie that good grounds exist for framing charge under s. 409 I.P.C. against accused <NAME> with charge under s. 120B read with s. 409 I.P. Code aaginst (1) <NAME>, (2) <NAME>, (3) <NAME>, (4) <NAME> and (5) <NAME>, another charge under s. 467 read with s. 34 I.P. Code against (1) <NAME>, (2) <NAME>, and (3) <NAME> for forging Ext. 5, and last under s. 477A against (1) <NAME>, (2) <NAME>, (3) <NAME>,(4) <NAME> and (5) <NAME> in respect of falsification of shareholders minute book (Ext. 18) purporting to ratify the action of <NAME> regarding the funds of <ORG>"

Against this order, a revision application was filed in <ORG> which was'rejected in limine. Against the order passed by <ORG>, this appeal has been filed with special leave.

In the present case the order of commitment was made under s. 207A of the Code of Criminal Procedure. Normally <ORG> in a revision application filed against the order of commitment under s. 207A will not enter upon a reappraisal of the evidence on which the order of commitment is made. <ORG> would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged, where there is no evidence on which the order of commitment could be made, where there has been denial of a right to fair trial, where there is reason to think because of failure to comply with the rules of procedure or conditions precedent to initiation of criminal proceedings, where by ignoring the substantive law which constitutes the offence, or misconception of evidence on matters of importance grave injustice has resulted, and on similar other grounds. But in other cases, interference with the order of the Magistrate committing the accused for trial may not be justified and the trial before <ORG> should be allowed to run its course.

Counsel for the appellants submitted that there was no evi dence on which the order of commitment could be made. We do not think that there is any ground for so holding. It was the prosecution case that in order to commit criminal breach of trust in respect of an amount exceeding Rs. 5 lakhs by allowing it to remain with Messrs Das Brothers--the previous managing agents of the company of which <NAME> was the sole proprietor and from whom <ORG> took over the managing agency-a conspiracy was entered into between the seven named persons, and the minutes book of the meetings of <ORG> and the shareholders' minutes book were fabricated and criminal breach of trust was committed in respect of the funds belonging to the <ORG>. It is true that in the balance sheet Ext. 137 for the year ending December 31, 1952, on the assets side is an item 'Sundry Advances (Unsecured)' inclusive of Rs. 5,78,941-7-0 due by a firm in which a director of the <ORG> was a partner. But this, it is the case of the prosecution, was not supported by any resolution passed by <ORG>. By letter dated June 21, 1956, the Additional Registrar of Companies asked the <ORG> to furnish a certified copy of the minutes of <ORG> .in which the loan had been made to the managing agents of the <ORG>. In reply thereto by letter dated July 12, 1956, the Managing Agents wrote that as the money was held by the managing agents and was not given or treated as a loan, there was no resolution of <ORG> in that connection. On September 29, 1956, the Additional Registrar of Companies again wrote a letter .to the <ORG> enquiring whether the amount of Rs. 5,78,941-7-0 which was lying with the previous managing agents of the <ORG> Messrs Das Brothers had since been realised, and if so, the evidence adjusting the liability,. and if not, to intimate with material evidence whether any steps had since been taken by the <ORG> for the realization of the dues and how the matter stood. in the course of the investigation the officer in charge attached a directors' minutes book Ext. 5 which contains the minutes of a resolution authorising <NAME> to retain the funds of the <ORG>. Therefore, there was some evidence on which the charge for fabrication of the Director's Minutes Book may be sustained.

In dealing with the charge for fabricating the Shareholders' Minutes Book the learned Magistrate has observed that the materials on the record made out a strong prima facie case that the Shareholders' Minutes Book Ext. 18 is also a forged document. The circumstances which lent colour to the prosecution, in the view of the learned Magistrate were--(1) that Ext. 18 starts from February 28, 1945, although the Company was incorporated in 1942, (2) in many meetings the signatures of the shareholders were not taken although in some meetings the shareholders signed the minutes book, (3) resolutions of <NAME> and <NAME> are not incorporated in the minutes book, (4) some portions in the last page in the agreement (Ext. 20) with the managing agency firm <ORG> appear to have been erased out and the agreement was thus tampered with, (5) the minute book Ext. 18 does not incorporate 'the relevant questions, and there appeared tampering with pagination, (6) the evidence of P.Ws. 6 & 16 regarding their presence or absence, and (7) the testimony of P.Ws. 15 & 24 suggested that most of the persons shown to have attended meetings were at the "back and call of the accused <NAME>". Whether this evidence may justify a conviction cannot be enquired into at this stage. The evidence was prima facie sufficient to frame a charge. The Presidency Magistrate was of the view that a case for framing a charge for committing the case to <ORG> was made out and <ORG> has summarily dismissed the revision application in exercise of its jurisdiction.

It was contended before us that under s. 209(1) of the Code of Criminal Procedure, a charge may be framed only if in the view of the committing Magistrate the evidence on record is sufficient to justify conviction of the accused. Section 209 of the Code provides:

"When the evidence referred to in section 208 , subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly."

In terms s. 209 applies to cases which are instituted otherwise than on a police report. But the principle underlying that section applies to cases which are instituted on a police report. A Magistrate holding an enquiry is not intended to act. merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction.

We do not agree with counsel for the appellants that there was no evidence on which a charge could be framed against the appellants or that the evidence was so totally unworthy of credit' that an order recording the conviction against the accused could not be made thereon. The appeal fails and is dismissed. We trust that the case which has been held up for a very long time will be taken up by <ORG> for trial with the least practicable delay.

R.K.P.S. Appeal dismissed.


<NAME>, J.

1. The facts of this case are as follows : In this case one <NAME> had obtained a decree against defendants 1 and 2 in S.C.S. N0.296 of 1915. In execution of that decree (E. P. No. 959 of 1915) the decree-holder attached the suit property. The order to attach was made on nth August, 1915 and the attachment was actually made on 6th September, 1915. The sale was posted to 8th January, 1916. On 6th January, 1916 the present 3rd defendant filed a claim petition. On 8th January, 1916, the sale was adjourned to 15th January, 1916, in order to enable the <ORG> to enquire into the claim. But the claim petition was actually disallowed only on 17th January, 1916. The order disallowing the claim petition runs as follows : " In these two cases rival claimants have preferred claims to the property in dispute. The judgment-debtors are minors and two persons purporting to be their guardians have sold in one case the whole property and in another half the property to the two purchasers respectively who are adjacent land owners. The contest is practically between the two claimants and a suit is inevitable. On the grounds that the claims have been preferred too late and the delay is not satisfactorily explained, I disallowed the claim." Seeing that the attachment was made on the 6th September, 1915 and the claim petition was filed on 6th January, 1916 it is difficult to believe that there was such a serious delay in the case as to justify a dismissal without enquiry. It is doubtful that the District Munsif really meant to dismiss the claim petition on the ground of delay in view of his remark " The contest is practically between two rival claimants and a suit is inevitable." He seemed to think that whatever his order was, a regular suit was so certain that to enquire into the merits at that stage would be a waste of time and it was desirable to avoid waste of time at that stage. It is, therefore, difficult to construe the District Munsif's judgment as one dismissing the petition on the ground of delay in spite of the express statement to that effect. If the judgment of the District Munsif cannot be regarded as one disposing of the claim petition on the ground of delay, then the <ORG> decision in <CITATION> (1918) ILR 41 M 985 : 35 MLJ 335 (FB) does not apply; and the issue which raises the question of title will have to be gone into. But I do not wish to rest my judgment in this case solely on this ground in view of the ambiguous nature of the District Munsif's order. Mr. <NAME> has contended that E. P. No. 959 of 1915 was dismissed and with its dismissal the attachment has ceased to exist under Rule 57 of Order 21, Civil Procedure Code. The E. P. No. 959 of 1915 with all orders thereon up to 1st February has now been exhibited in Second Appeal as Ex. A. E. P. No. 196 of 1916 is exhibited as Ex. B. What happened was that on 17th January, 1916, after the claim petition was disallowed the decree-holder requested the <ORG> to stop the sale. At any rate that is the note made on the execution petition. Mr. <NAME> who appears for the respondent now suggests that that was not the result of the unwillingness on the part of the decree-holder to proceed with the sale but it was at the suggestion of the District Munsif that he stated he would file another petition and was willing to withdraw the same. He relies on E. P. No. 196 of 1916 which was filed on the 31st January, 1916, and on which an order was made directing notice for fresh proclamation. This was ordered on 21st February, 1916. In that petition, the petitioner stated that the <ORG> suggested that another petition may be filed on 1st February. No doubt the facts are somewhat suspicious and support Mr. <NAME>ar's suggestion. But the first petition was not very old at the time and there does not seem to be any particular reason why the District Munsif should be anxious to have it taken out of the file for statistical purposes being only five months old and suggest to the party to file another petition. If the District Munsif did so for such purposes no doubt it is improper. The decree-holder seemed to be willing to oblige the District Munsif. Anyhow he was willing that the fact should appear as if he was not prepared to proceed with the E. P. No. 959 of 1915 on 17th January, 1916. The final order in E. P. No, 959 of 1915 on the 1st February was that the petition was dismissed. Whatever the effect of that order was between the decree-holder and the judgment-debtor, persons who are not parties to the execution proceedings and who do not know all that passed between the <ORG> and the decree-holder are entitled to rely on the fact that the petition was dismissed on account of the unwillingness of the decree-holder to proceed with E. P. No. 959 of 1915. The result of this was that the attachment ceased to exist under Order 21, Rule 57. Though a fresh order on E. P. No. 196 of 1916 was taken without a fresh attachment and is final and binding between the decree-holder and the judgment-debtor and cannot be questioned on account of want of attachment, the present 3rd defendant is entitled to rely on the result of the dismissal of the earlier petition and say that the attachment has ceased to exist so far as he is concerned.

2. If the attachment has ceased to exist the next question that arises is whether the order on the claim petition, dated 17th January, compels the 3rd defendant to set it aside within one year and precludes him from raising his title in the absence of his suit within one year. On this question it is convenient if I make an extract from my judgment in A.S. No. 36 of 1920 referring this identical point to the Full Bench.

3. The appellant next contends that the order of 8th August, 1916, has not got to be set aside because the attachment to get rid of which, the claim petition was filed, had ceased to exist.

4. I will first observe that the effect of an order on a claim petition may be different according as the judgment-debtor is or is not a party to the inquiry. It was pointed out in <CITATION> (1902) ILR 25 M 721 : 12 MLJ 411 that the judgment-debtor may not be a party to the inquiry on the claim petition and in such a case the order though in favour of the claimant and opposed to the judgment-debtor's rights need not be conclusive against the judgment-debtor if no suit is filed by him within one year to set it aside. Conversely, if adverse to the claimant and in' favour of the judgment-debtor it need not be set aside by the claimant to the full extent it may sound in favour of the judgment-debtor and has to be set aside only so far as the order is in favour of the decree-holder concerned. If the judgment-debtor is a party, then the order on the claim petition decides not only questions between the claimant and the decree-holder, but also questions between the claimant and the judgment-debtor, the latter being in general much broader in scope than the former. To put it in other words : as soon as a claim petition is filed, there are three possible parties to the inquiry--the claimant, the decree-holder and the judgment-debtor and we may have two classes of cases : (1) Cases in which all three are parties. In such a case an order against the claimant will be wider in scope and has effects reaching much farther than in the second class. (2) Cases in which the claimant and the decree-holder are the only parties. In this case the order is narrower in scope and its consequences are not so far-reaching as in class (1).

5. An example will make my meaning clear. A obtains a decree against <ORG> for Rs. 200 and attaches a house worth Rs. 3,500. <ORG> claims ownership of the house and objects to the attachment. If A, <ORG> and <ORG> are parties to the inquiry and the claim petition is dismissed, it is obvious that the effect of the order is to hold that <ORG> is not the owner of the house and <ORG> is the owner, the order in favour of <ORG> operating to help A and other creditors of <ORG>. A regular suit by <ORG> in such a case to set aside the order to the fullest extent has to be valued at Rs. 3,500 and has to be filed in a <ORG>ourt competent to try that suit.

6. But if only A and <ORG> are parties to the inquiry, the effect of the dismissal of <ORG>'s petition is simply to hold that A has got a right to pursue the attachment and <ORG> has not got a right to object to the attachment. It is not to decide that <ORG> is not the owner of the property and that B is. A regular suit to set aside the order should be valued at Rs. 200 and not at Rs. 3,500 and may be filed in the District Munsif's <ORG>ourt. It may be that the reason of the order is that <ORG> is not the owner and it may be that, in the regular suit that follows, the issue that may be framed relates to the title of <ORG> (especially so if B is a party to the suit). These remarks follow from <NAME> v. Somasundaram <ORG>hettiar (1907) ILR 30 M 335 : 17 MLJ 95 ( <<ORG>ITATION> (1910) ILR 34 M 533 and <<ORG>ITATION> (1919) 37 MLJ 547. I will refer to these cases later on again, but at present I have made these general remarks as it is useful to remember the distinction in the discussion of cases.

7. The earliest case on the point raised before us is <CITATION> (1882) ILR 8 C 379. At page 281, Tottenham, J. says : " The finding of the <ORG> in the execution department that the sale was invalid only meant that the sale was invalid as against the judgment-creditor, and as against any purchaser who might purchase at a sale held in execution following that attachment. " In view of the latter clause, I do not see what meaning can be obtained by laying special emphasis on the words " against the judgment-creditor. " It may be that the reason of the order on the claim petition in that case was that the sale was made during attachment (see Section 64 of the present Code) but I do not see what argument can be derived from this fact unless the order on the claim petition which held that " the sale was invalid " expressly limited the operation of the order to claim petitions objecting to the particular attachment and saved other claim petitions to other possible attachments. The fact remains that the claim was dismissed with a general opinion that the sale was invalid without any limitation on the effect of the opinion.

8. The next case is Ibrahimbai v. <NAME> (1888) ILR 13 B 72. Bird-wood, J. said : "The second attachment was a new and distinct act giving a new cause of action on which the plaintiff is entitled to a fresh enquiry and decision." This was followed in <NAME> v. Bai <NAME> (1893) ILR 18 B 241 in which Sargent, C. J. says "when that attachment was removed by the judgment-creditor's own act on 20th November, 1888, there was no longer an attachment or any other proceedings, etc." <CITATION> (1903) ILR 31 C 228 their Lordships say at page 231 : "The object of the claim preferred by the plaintiff under Section 278, Civil Procedure Code, was to obtain the removal of the attachment, and when that attachment had been removed after payment of the decretal amount there was no longer an attachment or any proceeding in execution on which the order could operate to the prejudice of the plaintiff, and therefore there was no necessity to hiring a suit to set aside the order We are unable to accept the view suggested on behalf of the appellants that, in spite of the withdrawal of the attachment, the dismissal of the claim under Section 281, Civil Procedure Code, could, by virtue of the provisions of Section 283, Civil Procedure Code, have the effect of finally determining the question of title between the parties. "

9. The next case is <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136. It does not appear clearly from the facts whether the judgment-debtor was a party to the claim proceedings though, on the whole, it looks as he was not. The order on the claim petition was held conclusive against the claimant as between and a subsequent vendor from the judgment-debtor. I am indebted to my learned brother (<NAME>, J.) for the suggestion that this case can be justified on the ground that the subsequent vendor paid off the amount of the decree in execution of which the claim was preferred and may therefore be regarded as having been subrogated to the rights of the execution-creditor. This was not the actual ground of the judgment which seems to proceed on a too literal reading of Section 283. The learned Judges distinguish the cases in <CITATION> (1882) ILR 8 C 279 Ibrahimbai v. <NAME> (1888) I LR 13 B 72, <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1963) ILR 31 C 228 on the ground that in all these cases, the raising of the first attachment was within a year of the order on the claim proceedings. I find it difficult to follow this ground of distinction. In the first place, if it is conceded that the order becomes useless and inoperative when the attachment ceased within one year of the order, this is a concession not allowed by the literal reading of the section. Secondly, if the operativeness of an order on a claim petition is to be regarded as conditional on the continuance of the attachment, it is difficult to see why the cession of the attachment within one year should destroy the operativeness and the cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order. It seems to me a novel legal conception. Thirdly, the fact that the decrees were paid off within one year seems to be an accident. Not one of the eight Judges laid any emphasis on the fact. The only difference I can see between the two cases (the raising of the attachment within one year and its raising beyond one year) is that in the former case, the unsuccessful claimant who waits incurs no risk as he knows for certain within one year that the attachment in execution of it has ceased to exist and in the latter he takes a risk by not suing as he cannot be certain that the attachment will be raised. But I do not see why when the event, on which he takes his chance, viz., the cessation of the attachment by the payment of the decree or for other reason, happens, he should not take advantage of it simply because he took risks in so waiting. This distinction has not been approved by <NAME>, J., in <CITATION> (1919) 37 MLJ 547 and the decision in <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 must be regarded as unsound except on the ground that the judgment-debtor must be regarded as a party to the order on the claim proceedings. This is how it was treated in all cases in which it was cited with reference to this point in Krishnaswami Naidu v. Somasundaram Chettiar (1907) ILR 30 M 335 : 17 MLJ 95 ( <CITATION> (1914) 26 MLJ 499. In my opinion, after these cases, it is futile to rely on <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 as an authority of any value.

10. Another distinction has been suggested by the respondents in respect of the cases in <CITATION> (1882) ILR 8 C 279, Ibrahimbai v. <NAME> (1888) ILR 13 B 72, <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1903) ILR 31 C 228. It is said that the question of the collusiveness of the order arose in a proceeding unconnected with the decree in the execution of which the claim was preferred. <CITATION> (1882) ILR 8 C 279 and Ibrahimbai v. <NAME> (1888) ILR 13 B 72 the point arose in connection with the execution of a second decree though in <CITATION> (1882) ILR 8 C 279 it was a second decree based on the same right as the first. In <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1903) ILR 31 C 228, the question arose in later suits unconnected with the decree though in the former the party opposed to the unsuccessful claimant was the successful decree-holder claiming in some other right. The contention amounts to this, viz., the order is conclusive against the claimant in so far as he seeks to resist the particular decree though the attachments may be different but not conclusive as against different decrees though of the same decree-holder and a fortiori of different decree-holders. The distinction no doubt helps the respondents in the present case but is opposed to the decision in <NAME> v. <NAME> (1917) MWN 851. Incidentally I may observe this distinction concedes that the decisions in <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 and in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7 are erroneous and that the language of Order 21, Rule 63 should not be taken too literally. 1 think the distinction in so far as it seeks to apply the conclusiveness of an order to different attachments in execution of the same decree is opposed to the principle of Krishnaswami Naidu v. <NAME> (1907) ILR 30 M 335 : 17 MLJ 95 (FB) the reasoning in which equally applies to a case where there is a decree for costs to the extent of Rs. 200 and for mesne profits of the value of Rs. 3,500 and the first attachment was for costs only and the latter attachment is for the mesne profits. I also observe that the emphasis in all the four cases is on the non-identity of the attachments and not of the decree as the words underlined by me in the quotations from those judgments show.

11. If the language of Order 21, Rule 63 is read literally it may apply not only-

(a) to claimants resisting rights worked out in pursuance of the attachment to which the claim is made (in my opinion the operation of the rule ought to be confined to this class) but also to

(b) (1) between the claimant and other attachments under the same decree;

(2) between the claimant and attachments under other decrees of the same decree-holder;

(3) between the claimant and the decree-holder, whatever the right be on which he relies;

(4) between the claimant and all other decree-holders of the same judgment-debtor and all other persons claiming rights against the same judgment-debtor such as mere creditors who have not obtained decrees;

(5) between the claimant and judgment-debtor (including his assignees);

(6) between the claimant and all persons, (even if unconnected with the judgment-debtor) interest in denying the title of the claimant.[ <CITATION> (1919) 37 MLJ 547 at 549].

12. To allow the extension of the section so as to apply to class (6) is to create a species of orders in rem which are unknown except in Probate and Matrimonial proceedings. Even the doctrine of res judicata does, not apply so as to bar a person A from urging his right against C by reason of a former adjudication (adverse to A) between A and B. [Justice <NAME> points out in Sri Rajah Kakarlapudi Suryanara-yarinraju Garu v. Chellamkuri Chellamma (1870) 5 MHCR 176 that such a plea is allowed in Continental jurisprudence].

13. To allow the extension to class (5) is to ignore the distinction between the cases where a judgment-debtor is a party and where he is not which I pointed out at the beginning of the judgment. ,

14. To allow the extension to class (4) is to imagine that mere simple creditors and money decree-holders have got some interest in the property of their debtors and judgment-debtors though there is no charge on the property and not even attachment of it.

15. To allow the extension to classes (2) and (3) is to imagine that a person A, by merely obtaining a decree against B and attaching B's property under it has got a right to predicate that B is the owner of the property and not C for the purpose of all possible decrees he may obtain against B and all other purposes in respect of which he may come into conflict with C--a right unknown to law.

16. To allow the extension to class (1) is inconsistent with <NAME> v. <NAME> (1907) ILR 30 M 335 : 17 MLJ 95 (FB) and ignores the possibility of a decree being paid up by the judgment-debtor, or of an attachment being raised.

17. My view is supported by the two Bombay decisions and the two Calcutta decisions I have already mentioned by <CITATION> (1914) 26 MLJ 499 (though the point was not necessary for the decision) by Gollampalli Subbayya v. <NAME> (1917) MWN 851 (a very strong case on the facts) and by <CITATION> (1920) ILR 45 B 561. <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 the only decision in favour of the appellants is <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7. I have already commented on this in <CITATION> (1921) 41 MLJ 198 and one of the decisions I have referred to in this judgment except Gollampalli Subbayya v. <NAME> (1917) MWN 851 has been cited in it. It was based on a decision in <CITATION> 27 IC 800 in which the only question decided was whether the suit abated by reason of the satisfaction of the decree. The Code provides for no abatement except on death. Their Lordships held that the suit did not abate. I do not think it is permissible to infer from this that the order on the claim inquiry continues operative after the cessation of the attachment in a case where no suit was filed. I think the filing of the suit makes all the difference. The decisions in <CITATION> (1916) 31 MLJ 247, <CITATION> (1919) 37 MLJ 159 and <CITATION> (1919) 38 MLJ 397 do not help us as they are plain examples of the application of Order 21, Rule 63 without the complications of the Cessation of the first attachment. I think the decisions in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7 and Gollampalli Subbayya v. <NAME> (1917) MWN 851 are irreconcilable. Some reliance has been placed on the language of Section 64 of the Code. When we remember that Section 64 and Order 21, Rules 58--62 used to be in the same chapter of the former Codes, Section 64 supports my view and shows that the object of the <ORG> in providing against obstacles and objections to an attachment is the protection of rights created in pursuance of the attachment only."

18. The view I there took was that an order on a claim petition is final against the claimant in so far as the rights worked out in pursuance of the particular attachment are concerned. The only thing that I would now add in addition to the reasons given there is that Order 21, Rule 58 runs : "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, etc. " The language of the rule, especially the words " such attachment " I think, supports my reasoning in the passage quoted above. Seeing that there are a number of decisions of <ORG> taking this view, namely, <CITATION> (1914) 26 MLJ 499, Gollampalli Subbayya v. <NAME> (1917) MWN 851 and <CITATION> (1910) ILR 34 M 533 inasmuch as my learned brother agrees with my view, I do not think it is necessary to refer this case to <ORG> solely on account of the decision in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7. The second appeal will, therefore, be allowed and the suit remanded for fresh disposal as regards 3rd defendant. The appellant will have a refund of the <ORG>-fees paid in this <ORG> and in the Lower Appellate <ORG>. Costs in the first appeal and second appeal will be paid by the appellant as he has not raised the point about the cesser of attachment by filing the two execution petitions which have not been exhibited. Costs in the <ORG> of first instance to abide the result.

<NAME>, J.

19. I agree and have nothing to add.