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N.H. Moos Vs. Abdul HusaIn Mulla Tyeballi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Civil Extraordinary Application No. 304 of 1923
Judge
Reported inAIR1925Bom523; (1925)27BOMLR1147; 90Ind.Cas.600
AppellantN.H. Moos
RespondentAbdul HusaIn Mulla Tyeballi
Excerpt:
receiver - deceased's property-money unit against the estate in small causes court-receiver a party-no decree could he passed against receiver-decree against estate-execution under the decree to be had in court appointing receiver.;when a money suit is filed in the court of small causes against the heirs of a deceased party, whose estate is in the hands of a receiver appointed by the high court, the receiver hag nothing to do with the satisfaction of the claim. all that the court can do is to pass a decree in favour of the plaintiff against the defendants as the legal representatives of the deceased.;the fact that the plaintiff has obtained an ex parte order from the high court granting him leave to add the receiver as a party does not in any way affect the question whether the court..........his charge is directly sought to be affected.3. where a money suit is filed against the heirs of a deceased party, whose estate is in the hands of a receiver, the receiver has nothing to do with the satisfaction of the claim, and all that the small causes court could do would be to pass a decree in favour of the plaintiff against the defendants, as the legal representatives of the deceased. the fact that the plaintiff obtained an ex parte order from the high court granting him leave to add the receiver as a party does not in any way affect the question whether the court which hears the suit can grant relief against the receiver. that question would have to be decided on the merits and clearly no decree could be passed against the receiver, if the decree against the other defendants was.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an application in revision by Mr Moos, who was appointed Receiver by an order of the High Court for administering the estate of one Kadarbhai Issuji now deceased. The plaintiff filed a suit in the Small Causes Court, Bombay, against the heirs and legal representatives of the deceased owner of the estate. He added the Receiver as a party to the suit and obtained ex parte leave from the High Court to sue the Receiver. It should have been obvious that no relief could have been granted against the Receiver in a suit filed in the Small Causes Court. When the suit came up for hearing the Judge passed a decree against defendants Nos. 2 to 8, who were the heirs of the deceased, and dismissed the suit against the Receiver. The plaintiff then appealed to the Full Court, praying that the dismissal of the suit as against the petitioner might be set aside, and a decree for the amount claimed passed against him, The Full Court delivered judgment setting aside the order of dismissal and passing a decree against the Receiver as prayed.

2. That would appear at first sight to be a very strange decision on the part of the Full Court. The grounds for passing a decree against the Receiver are as follows :-

The Receiver was sued with the leave of the Court which appointed him. He was a necessary party us plaintiff wanted the property in his possession, i.e., the assets in his hands to be made available for the satisfaction of his claim. The High Court in granting; leave must have considered this aspect of the case, and it ho is a necessary party, the suit as against him cannot be dismissed, The two cases of Jotindra Nath v. Sarfaraj (1910) 14 C. W. N. 653 and Banku Bihari Dev v. Harendra Nath Mukerjee (1910) 15 C.W.N. 54 are explicit authorities on the point, and they decide that when the Receiver is made a party after leave to sue him has been obtained, the suit as against him cannot be dismissed I; the property in his charge is directly sought to be affected.

3. Where a money suit is filed against the heirs of a deceased party, whose estate is in the hands of a Receiver, the Receiver has nothing to do with the satisfaction of the claim, and all that the Small Causes Court could do would be to pass a decree in favour of the plaintiff against the defendants, as the legal representatives of the deceased. The fact that the plaintiff obtained an ex parte order from the High Court granting him leave to add the Receiver as a party does not in any way affect the question whether the Court which hears the suit can grant relief against the Receiver. That question would have to be decided on the merits and clearly no decree could be passed against the Receiver, If the decree against the other defendants was not satisfied, and the plaintiff wished to execute against the estate, lie would have to go to the High Court for permission to attach the estate of the deceased in the hands of the Receiver.

4. It is further remarked in the judgment of the third Judge that-

the Receiver is the representative for the poisons who may ultimately be found legally entailed to the property and as such is a necessary party to the suit, In any event no injustice could be caused to the estate as any decree passed heroin would have to be executed against the Receiver only with the leave of the Court that appointed the Receiver.

5. That, with all due respect, is an argument vitiated by a very patent fallacy. If n party makes a claim for money due by a person who is dead against his representatives, then he can only get a decree against the representatives, to the extent of the assets in their hands, and if the estate is not in their hands, but in the hands of a Receiver, the plaintiff will have to go to the Court that appointed the Receiver, in order to attach the property in his hands. But by no possible conception could the Receiver be a necessary party in a suit to decide whether the plaintiff was entitled against the legal representatives of the deceased to recover money which he had advanced to the deceased in his life-time.

6. The rule, therefore, must be made absolute, and the decree of the Full Court set aside and that of the trial Court restored with costs throughout If the Receiver cannot recover his costs then he can apply to have them included in his account.


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