1. The applicant, as the Committee of a lunatic, filed suit No. 1896 of 1933 and on July 11, 1934, obtained a decree for Rs. 18,000 against the defendant-mortgagors in his suit. That decree was payable by instalments. In 1940 an application was made for execution, i.e. to sell the defendants' right, title and interest, inter alia, in the property at Chowpatty. A notice under Order XXI, Rule 22, was then issued and made absolute. On July 25, 1940, an application under Order XXI, Rule 54, was made and on August 2, 1940, the attachment was levied. On March 24, 1941, a warrant of sale was issued under Order XXI, Rule 64, and on July 18, 1941, claims were invited. Notice of that was published on July 30, 1941. It appears that this suit was filed by the bank as mortgagees against the defendants to realise their mortgage claim. On February 19, 1936, a preliminary mortgage decree was passed and Mr. Captain was appointed receiver. On September 29, 1938, the decree absolute was passed and Mr. Captain's appointment as receiver was confirmed. He was also given power to sell the property. It is alleged by the applicant that she was ignorant of all these proceedings and had taken steps to execute the decree in ignorance of the fact that Mr. Captain was appointed a receiver in the mortgage suit. This summons is taken out by the applicant to obtain from the Court leave to continue the attachment proceedings with regard to the Chowpatty property in execution of her decree and to proceed with the sale thereof, or, in the alternative, that leave may be granted to the applicant to ignore the receivership of the said property.
2. Mr. Daphtary first argued that leave of the Court was necessary because the property was in possession of the Court by reason of the appointment of the receiver, and the Court would object to its possession being disturbed. No express provision of law is found in that connection, but this is based on the fundamental principles of law. He argued that Order XXI-, Rules 52, was only a mode of attachment of property in the custody of the Court. It did not deal with the leave necessary to be obtained for proceeding under Order XXI, Rule 52. That argument is correct. He further contended that Order 'XXI, Rule 52, was applicable only when the property was not immoveable property. His contention is that when the property was immoveable the procedure prescribed by Order XXI, Rule 54, may be adopted without proceeding under Order XXI, Rule 52. I do not accept that contention. The words used in Rule 54 are similar to the words used in Rules 46 and 47 and there appears no reason why the words in Rule 52 should be limited so as to exclude immoveable property. The only argument advanced in support of that contention is that the words are followed by 'interest or dividend becoming payable thereon.' I do not think these words are placed to limit the general meaning of the word 'property' in Rule 52.
3. In this connection strong reliance was placed on Pratapmall Rameshwar v. Chunilal Jahuri (1932) I.L.R. 60 Cal. 345. There the Court was dealing with an act of insolvency of a debtor who had allowed his property to remain under attachment for over twenty-one days. The larger question, whether the word 'property' in Order XXI, Rule 52, included immoveable property, was not decided, but it was assumed to include it In the course of the judgment it was pointed out that there may occur collusive suits between partners or members of a family and a suit for dissolution of partnership or partition may be filed in which a receiver would be appointed with a view to defeat the claims of creditors or delay the same indefinitely. It was discussed that in such a case the Court may give leave to execute the decree by attachment of the immoveable property as if no receiver was appointed. On considering the rules framed by the Calcutta High Court in its Original Civil Jurisdiction it appears that there is a well-settled practice prevailing there on which Chapter XVII of their rules is framed. In our High Court there are no rules similar to those rules and under the circumstances that case is clearly distinguishable. Again, I am unable to read the words used in Rule 52 as permissive. In my opinion they are imperative for the judgment-creditor. He has to apply for attaching the property in the hands of the receiver, and while making the application he may put before the Court sufficient grounds to prevent the Court from making the ordinary order prescribed by that rule or limit the operation of such order to a named property or a named period. The Court has jurisdiction at the time of considering the judgment-creditor's application and making an order under Order XXI, Rule 52, to vary the terms and directions given to its officer; but, I am unable to hold that Order XXI, Rule 52, permits the judgment-creditor to proceed under Order XXI, Rule 54, merely after he obtains leave to proceed to execute the decree on the ground that the property is in possession of a Court officer. The present application is not under Order XXI, Rule 52, and therefore must be dismissed with costs. Counsel certified. The applicant to pay the costs of the plaintiffs. Defendants Nos. 1, 2 and 6 to bear their own costs.