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Mohd. Ghulam Ghouse Khan Vs. Anantha Rao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberO.S.A. No. 7 of 1983
Judge
Reported inAIR1984AP150
ActsCode of Civil Procedure (CPC), 1908 - Order 40, Rule 1 - Order 22, Rule 10
AppellantMohd. Ghulam Ghouse Khan
RespondentAnantha Rao Deshmukh
Appellant AdvocateM. Azizullah Khan, Adv.
Respondent AdvocateParty in person
Excerpt:
civil - leave of court - order 40 rule 1 and order 22 rule 10 of code of civil procedure, 1908 - high court in exercise of its original jurisdiction allotted different shareholders item 29 of schedule 4 of plaint schedule as per allotment order - appellant who resided adjacent to plot no. 3 in said item 29 filed suit for permanent injunction before 7th assistant judge, city civil court against receiver - subsequently said receiver was discharged and present respondent was appointed as receiver - ex parte decree was passed - present respondent filed application for setting aside of ex parte decree - whether receiver appointed by court can be sued without leave of court which appointed him and whether such decree passed against him is nullity - when court has appointed receiver and receiver.....p. kodandaramayya, j.1. this appeal raises an important question of law namely, whether a receiver appointed by court can be sued without leave by the court which appointed him and whether such a decree passed against him is a nullity.2. this court in exercise of its original jurisdiction in c. s. no. 14/58 allotted to different shareholders item 29 of schedule iv of plaint schedule situated in zamistanpur bearing survey no. 179 as per allotment order dated 29-1-1971. final decree proceedings have not yet been passed (and) the receiver is in possession of the property. the appellant in this appeal who is residing adjacent to plot no. 3 the paigh land in the said item 29 filed a suit on 27-8-1978 for permanent injunction in o. s. no. 2818/78 on the file of vii assistant judge, city civil.....
Judgment:

P. Kodandaramayya, J.

1. This appeal raises an important question of law namely, whether a receiver appointed by Court can be sued without leave by the Court which appointed him and whether such a decree passed against him is a nullity.

2. This Court in exercise of its original jurisdiction in C. S. No. 14/58 allotted to different shareholders item 29 of Schedule IV of plaint schedule situated in Zamistanpur bearing survey No. 179 as per allotment order dated 29-1-1971. Final decree proceedings have not yet been passed (and) the receiver is in possession of the property. The appellant in this appeal who is residing adjacent to plot No. 3 the paigh land in the said item 29 filed a suit on 27-8-1978 for permanent injunction in O. S. No. 2818/78 on the file of VII Assistant Judge, City Civil Court, Hyderabad against the Receiver, the respondent herein restraining him from interfering with his possession claiming that the dispute plot No. 3 forms part of the land of his residential house 1-7-13. A plea was raised by the receiver that the suit is not maintainable as leave from this Court which appointed him was not obtained. Subsequently the said receiver Sri P. Narayanarao who was a party in that suit was discharged on 23-6-1982 and a new receiver Sri Ananatarao Deshmukh was appointed on the same day.

But the plaintiff-the present appellant did not bring on record the new receiver but proceeded with the trial of the suit and no one represented the receiver. Pending the suit the plaintiff obtained a temporary injunction and constructed a compound wall over plot No. 3 and ultimately obtained an ex parte decree on 23-8-1982. The present respondent in this appeal, the new receiver filed an application to set aside the said ex parte decree on 15-6-1983. When the above application was pending he filed the present application No. 88/83/in C. S. No. 14/58 on the file of this Court on 7-7-1983 under Section 151 and Order 40, Rule 1, C. P.C . requesting this Court to remove the encroachment by the appellant and also for demolishing the compound wall raised by him stating, that the decree obtained against the previous receiver is a nullity on the ground that no leave was obtained from this court and also new receiver was not substituted when the previous receiver was discharged from office.

The learned single Judge Sri Justice Rama Rao allowed the application holding that the decree in O. S. No. 2818/78 is a nullity as no leave was obtained from this Court. He also accepted the contention that the decree obtained against the previous receiver without substituting the new receiver is void. Accordingly he allowed the application and directed demolition of the construction of the compound wall over plot No. 3 of the Zamistanpur land bearing survey No. 179 adjacent to the house No. 1-7-13 of the appellant herein with a direction that the receiver is entitled to take the Police aid at the time of the demolition. Against the said order the present appeal is filed.

3. The learned counsel for the appellant raised three contentions.

(1) The decree obtained against the receiver without leave from this Court is not a nullity and the remedy of the receiver is to get that decree set aside and till then he is bound to obey the said decree.

(2) The interest of the previous receiver devolves on the new receiver and the decree obtained against the previous receiver is valid and no abatement taken place.

(3) The learned Judge having held the decree as a nullity should have decided the claim of the appellant himself and the Court has no power to dispossess any third party in the suit who has got a paramount title as envisaged by O. 40, Rule (1) (2), C. P.C .

4. We have to examine the true effect of the decree obtained by the appellant against the receiver without leave from this Court and the remedy of the receiver under the circumstances of the case. This can be examined under three parts. (I) The rule requiring the leave to sue the receiver and the reason for it. (II) Whether the decree obtained against the receiver without leave is void or voidable, (III) The nature of the order that the Court which appointed the receiver should pass in such circumstances.

5. I. The Rule - and the Reason behind it.

A receiver appointed by the Court is an officer of the court deriving the authority from the Court's order. He is often spoken of as the hand of the Court. He is a public officer within the meaning of Section 2(17)(d), C. P.C . As Kerr puts it, the receiver in an action to manage the estate is an impartial person. Though there is no statutory provision which requires a party to take leave of the Court to sue a receiver appointed by the Court, the said rule has become part of the rule of equity binding on all Courts. It is a rule based upon high public policy to avoid conflict of jurisdiction between different Courts. As observed by the Supreme Court in Kanhaiyalal v. Dr. D. R. Banaji, : [1959]1SCR333 'The general rules that property in custodia legis through its duly appointed Receiver is exempt from judicial process except to the extent that the leave of that Court has been obtained, is based on a very sound reason of public policy, namely, that there should be no conflict of jurisdiction between different Courts.

If a Court has exercised its power to appoint a Receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other Courts or Tribunals of co-ordinate or exclusive jurisdiction were to permit proceedings to go on independently of the Court which has placed the custody of the property in the hands of the Receiver, there was a likelihood of confusion, in the administration of justice and a possible conflict of jurisdiction. The Courts represent the majestly of law, and naturally, therefore, would not do anything to weeken the rule of law, or to permit any proceedings which may have the effect of putting any party in jeopardy for contempt of Court for taking recourse to unauthorised legal proceedings. It is on that very sound principle that the rule is based.' Adverting to this rule P. N. Mookerjee, J., in Banwarilal Agarwalla v. Sudhamoy Basu, ILR (1955) 2 Cal 55 remarks that 'It is an ancient rule of salutary import which has for all practical purposes become a part of the law of the land.' Leave of Court is necessary even when the stranger to the action asserts possession as against Receiver. The earliest authority for this proposition as laid down in Searle v. Choat, (1884) 25 Ch D 723 was followed by Indian Courts. (Vide Amulya Chandra v. Kashi Nath, AIR 1927 Patna 297).

6. When the Court has appointed a receiver and the receiver is in possession, his possession is the possession of the Court and cannot be disturbed without its leave. If any one, whoever he be, disturbs the possession of the receiver, the Court holds that person guilty of contempt of Court, and liable to be imprisoned for the contempt.

7. Recently in Everest Coal Co. v. State of Bihar, : [1978]1SCR571 the Supreme Court resolved the conflict of judicial opinion and held leave for suing the receiver can be granted even after the filing of the suit and also held that the infirmity of not obtaining the leave does not bear upon the jurisdiction of the trying Court or the cause of action. It is peripheral. It also held that if a suit prosecuted without such leave culminates in a decree is liable to be set aside. Thus, it is clear that the leave is essential though not a condition precedent for filing the suit.

8. II. Now the question is whether a decree obtained without leave is void and can be treated as a nullity or it is only voidable. This question was specifically left open by the Supreme Court in Kanhaiyalal v. Dr. D. R. Banaji : [1959]1SCR333 . In that case the question raised was whether the sale of the property in the custody of the Receiver without the leave of the Court is void. It was observed (at p. 728) :-

'The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without the leave of the Court appointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity. The American Courts appear to have taken the view that such a sale is viod. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio'.

However there are earlier judgments of the Madras High Court taking the view that sales are only viodable. (Venkata Narasimha v. Venkatalingam, AIR 1944 Mad 372, Gundu Venkatalingam v. Venkata Ranganayakulu, (1954) 2 Mad LJ 86, Veerappa v. Mana Pillai, : AIR1963Mad33 ) reaffirmed the above principle holding that Kanhaiyalal v. Dr. D. R. Banaji did not lay down any contrary rule. The failure to obtain leave makes the proceedings null and void according to American authorities. However it was considered to be not a jurisdictional defect of the suit is prosecuted in the same Court which appointed the receiver. Corpus Juris Secundum, Vol. 75 page 1008 states as follows:-

'Action in Appointing Court: Failure to obtain formal leave of Court is not a jurisdictional defect where the suit is prosecuted in the same Court which appointed the receiver. So, failure to obtain leave to sue is no defence to an action brought in the same Court in which the receivership proceedings are pending, or in a Court presided over by the same Judge who appointed the receiver, although in a different judicial district of the country.

Waiver: Where failure to obtain leave to sue is not a jurisdictional defect, the failure to obtain leave may be waived, as where the receiver voluntarily appears and defends the action or takes other steps therein without raising the objection. If the requirement of leave to sue is waived by the receiver no advantage of the omission can be taken by anyone else.

Curing Defect : Want of leave to bring suit may be cured by leave subsequently obtained, as by a nuncpro tunc order.'

9. We have already noticed that it is not a statutory requirement and the question now is whether such institution of suit makes the proceedings to suffer due to inherent lack of jurisdiction.

'The distinction between want of jurisdiction and error is this: in the former case, the whole proceedings is coram non judice, and void; in the latter, the proceedings cannot be impugend in a collateral action, even though it be erroneous upon its face ...............' (Vide page 57 Horace Hawes 'The Law relating to the Subject of Jurisdiction of Courts'.

This debate is necessary as it is well-known that if a decree is passed by a Court without jurisdiction it is void or nullity and it can be collaterally attacked without the necessity of taking steps to set aside in superior Courts. In fact Section 44 of the Evidence Act enables a party to show in a suit or any other proceedings that a particular decree delivered by a Court was not competent to deliver it. The competency of the Court and its jurisdiction are held to be synonymous terms. (Vide Sardar Mal v. Anaruyal, (1897) ILR 21 Bom 205). The Supreme Court in Hira Lal v. Kali Nath : [1962]2SCR747 while examining the grounds on which when a decree can be challenged in execution proceedings held (Para 4):

'The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.'

We are concerned here with the jurisdiction of the Civil Court. The word 'jurisdiction' means simply 'power', though sometimes it bears the slightly narrower sense of 'power to decide'. (Vide Administrative Law, Fourth Edition, H. W. R. Wade page 41). But in recent times in Administrative Law the meaning of the said word was enlarged as the orders of Tribunals or authorities with limited jurisdiction can be questioned not only on the ground of want of jurisdiction but also excess of jurisdiction or abuse of jurisdiction also and in all those cases the Courts treating those decisions as being without jurisdiction and void made some observations that such decisions are nullity. In the well known Anisminic; 1969 (1) All ER 208 at p. 233) Lord Pearce observed as follows:-

'Lack of jurisdiction may arise in many ways. There may be an absence of these formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.'

In fact Lord Denning observed in Pearlman's case 1979 QB 56 that 'any error can be described as error of jurisdiction as well as error of law within the jurisdiction. The choice is that of the Court'. It is seen that the word 'void or nullity' is used in a very wide sense in administrative Law. So we cannot take those decisions as guide while examining the jurisdiction of Civil Court. Its jurisdiction cannot be ousted except the cognizance of such claims were expressly or impliedly barred under Section 9 of the Civil P. C. In the case of Civil Court unlike any tribunal or authority its jurisdiction and authority is not limited by provisions of any Act.

We have also noticed that a suit can be filed without leave and hence it does not touch the initiation of the proceedings before it. Normally, the question of jurisdiction is determinable at the commencement not at the conclusion of the enquiry as held in Rex v. Boltan, (1841) 1 QB 66 at page 74. This dicta is approved by our Supreme Court in Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621. We find in Hriday Nath Roy v. Ramachandra Barna (1921) ILR 48 Cal 138 : (AIR 1921 Cal 34) the earliest authority a Full Bench decision of the Calcutta High Court where the elements that usually make up the competency of the jurisdiction are stated to be, the persons litigating, the subject-matter, and the question before the Court. Mookerjee, A. C. J. in that case emphasised the distinction between the existence of jurisdiction and tahe exercise of jurisdiction and observed:

'We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination........................The boundary between an error of judgment and the usurpation of power is this : the ofrmer is reversible by an Appellate Court within a certain fixed time and is therefore only voidable, the latter is an absolute utility.'

It is partinent, to note a passage from Halsbury's Laws of England, Vol. 22 Third Edition paragraph 1665:

'A Court will also treat as a nullity and set aside, of its own motion if necessary, a judgment entered against a person who was dead or a non-existent company.

Similarly, when there has been some procedural irregularity in the proceedings leading up to a judgment or order, which is so serious that the judgment or order in question ought to be treated as a nullity, then the Court will also set it aside. There is no decisive test for ascertaining which irregularities render a judgment void, as opposed to those which render it voidable, but one test which may be applied is whether the irregularity has caused a failure of natural justice.'

The following are some of the cases where inherent lack of jurisdiction in Civil Court was held established:-

A Full Bench decision in Rajagopala Aiyar v. Ramanujachariyar, (1924) ILR 47 Mad 288 : (AIR 1924 Mad 431) held that want of notice under O. 41, R. 22, C. P. C. renders orders of execution nullity. Similarly, if trial took place without obtaining the necessary sanction the proceedings are held to be completely null and void. (Vide Basdev Agarwalla v. Emperor, AIR 1945 FC 16) A Full Bench of this Court in Public Prosecutor v. Devi Reddy, AIR 1962 Andh Pra 479, held that an order passed by a single Judge altering conviction under Sec. 326, I. P. C. into a conviction under Sec. 302, I. P. C. in exercise of appellate powers under Section 423(1)(b), Cr. P. C. though opposed to law was held to be not a nullity or void as it cannot be said to one of lack of inherent jurisdiction. A decree cannot be treated as nullity as the suit is barred by time. (Ittyavira Mathai v. Varkey Varkey, : [1964]1SCR495 ).

A striking illustration of inherent lack of jurisdiction is provided in Raja Soap Factory v. S. P. Shantharaj, : [1965]2SCR800 , where the Supreme Court held that the High Court is not competent to exercise original jurisdiction of which it does not possess. The word 'jurisdiction' is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding. So it must be determined with reference to its constitution to try the proceedings. Perhaps very near case where the Civil Court was held to be incompetent to pass an order though it does not relate either its constitution or the persons or the persons or the subject-matter is Official Trustee. W. B. v. Sachindra, : [1969]3SCR92 , where the Supreme Court held: 'The Court while exercising powers under Section 34 of the Trusts Act cannot permit the settlor to revoke a clause in the trust deed and substitute a new clause.' Hegde, J., held (Para 15):

'Before a Court can be held to have jurisdiction to decide ka particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue.'

The test laid down by the learned Judge is, 'it is not merely an order that he (Judge) should not have passed but it is an order that he (Judge) could not have passed and therefore a void order.' Section 34 of the Trusts Act was construed as restricting the power of the Civil Court to pass orders in respect of management of Trust. While drawing a distinction between cause of action and the Court's jurisdiction based upon endorsement of Railway receipt in favour of the plaintiff it was observed in Rallis (India) Ltd. v. Union of India, ILR (1973) 1 Cald 594 at p. 660 that.

'Thequestion of jurisdiction of the Court to try the suit has nothing to do with the question of the plaintiff's right to sue. The first one goes with the question of the Court's power to hear the cause whereas the last one goes with the question as to whether any legal right of the plaintiff has been wrongfully infringed by the defendant.'

10. It is true the view taken in G. A. Vilampal v. Idol of Sri Madyaijuneswaraswami, (1977) 90 Mad LW 346, that such decree is a nullity may be obiter. However, we do not find anything in the judgment of : [1978]1SCR571 to hold that such decree is a nullity and we are not persuaded to construe the said judgment as our learned brother Rama Rao, J., construed holdign that such decree is a nullity. In the said judgment the Supreme Court held that a failure to secure such a leave till the end of the lis may prove fatal and if a suit prosecuted without such leave culminates in a decree it is liable to set aside. These observations do not mean that a decree is a nullity. On the other hand the observation of the Court at page 2306 that 'any litigative disturbance of the Court's possession without its permission amounts to contempt of its authority; and the wages of contempt of Court in this jurisdiction may well be voidability of the whole proceeding' would lend support to the view and such decree is voidable but not void.

11. Applying these tests it is not possible for us to hold that want of leave makes the proceedings one of inherent lack of jurisdiction on the part of the Court either because of subject-matter, or the persons, or the questions raised before it. It is also not a case of initial lack of jurisdiction as leave obtained susbequently can cure the defect. Hence it is more a prohibition on the part of the plaintiff to prosecute the suit rather than the inherent lack of jurisdiction on the part of the Court. The question of jurisdiction of the Court to try a suit has nothing to do with the plaintiff's right to sue. The want of leave makes the plaintiff incompetent to sue but not the Court to try the issue. Once we remember that it is not lack of jurisdiction on the part of the Court but the incompetency of the plaintiff to prosecute the suit in order to avoid conflict of jurisdictions and contempt of Court by him, we hold that the decree passed by the Court without leave is not nullity or void.

12. III. This takes us to the third part of this question viz., the nature of the order that the receivership Court can pass in such circumstances. We have noticed that the object is to avoid conflict of jurisdiction and hence the Court which appointed the receiver can punish the party who started the proceedings without leave for contempt of Court. It can also restrain him from prosecuting the proceedings by injunction. Any threatened proceedings can be restrained by Court that appointed the receiver. If a suit in pending the plaintiff can be restrained from prosecuting the suit and if a decree is passed he can be restrained from enforcing the same. A restraining order operates on the parties and not on the Court in which the action is brought. (Vide Corpus Juris Secundum Vol. 75 page 1008). It is to be noticed that even in case where an action for possession is brought against the receiver after obtained leave, the decree obtained cannot be executed without further leave from the Court.

Basing on the English Authority in Morris v. Baker (1903) 73 LJ Ch 143, the Indian Courts also accepted the said principle. (Vide Jugal Kishore v. Deva Prasanna, AIR 1928 Patna 321). It is held in the above judgment that the party in whose favour the decree is passed with the leave of Court cannot enforce that decree in execution, but the proper procedure is to apply to the Court which granted leave to direct the receiver to act in accordance with that decree. (See Halsbury's Laws of England, Fourth Edition, Vol. 39 para 879 for the same principle). Under Order 40, Rule 1 (d) C. P. C. the Court may by order confer upon the receiver all such powers including the bringing and defending suits. The receiver appointed by Court unlike Official Receiver in the Insolvency Court has no independent title and is only acting through Court and in fact it is the Court that is prosecuting the proceedings through the instrumentality of the receiver.

Further it is also seen the Court generally grants leave and allows the matter to be litigated in a separate suit if it is not possible to examine the cliam ofh te third party against the receiver. Further if in a given case even a decree obtained without leave is shown to be a just one the Court may direct6 the receiver to obey it, but till the Court which appointed the receiver permits obedience of the order of a different Court either in execution of the decree or otherwise it cannot be enforced against the receiver. If such enforcement is brought to the notice of the Court it can restrain the party from enforcing it. Hence we hold that if a decree is passed against a receiver appointed by the Court can either restrain the further proceedings in the suit or if a decree is already passed it can order stay of the execution proceedings. No doubt such discretion is not an arbitrary one and the Court is bound to either enquire into the rights of the third party or grant leave to agitate his rights in a separate suit.

13. If we apply these principles to the facts of this case it is clear the appellant before us is grossly guilty of contempt of Court. The receiver filed a written statement raising the plea that the suit is not maintainable without leave. Notwithstanding such plea it is very strange the suit was proceeded with and the Court passed a decreed ex parte, as the original receiver was discharged and the new receiver did not contest the matter.

14. Next we have to examine the second contention viz., whether the omission to bring the new receiver on record after the earlier receiver is discharged is fatal and such decree is a nullity. It is urged that the interests of the previous receiver devolves on the newly appointed receiver and there is no abatement as contemplated under O. 22, C. P. C. We think this contention is well founded. In this case a new receiver took charge on 23-6-1982 before a decree is passed and hence there is a devolution of interest. The provisions of Order 22, Rule 10, C. P. C. are relevant in this case which are in the following terms:

'Order 22, Rule 10 (1). In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).'

It is held in Moidin Kutty v. Doraiswami, : AIR1952Mad51 :

'A receiver acting under the authority of the Court is a statutory representative of the real owner. He is entitled to commence proceedings in his own name so as to bind the true owner and he should be entitled to continue all proceedings initiated by him. If it is a suit the application will fall under O. 22, Rule 10 and if it is an execution proceedings it will fall under Section 146.'

In Bipin Behari Bose v. Official Receiver, AIR 1921 Cal 422, Woodroffe, J., delivering judgment on behalf of a Division Bench held that where a new receiver took charge before the decree in the suit filed by the previous receiver was signed by the Judge, there was a devolution of interest and the decree is valid. A Bench of the Madras High Court in Sivakasi Viswanathaswami Devasthanam v. Koodalinga Nadan, AIR 1928 Mad 246, accepted the dicta and held that the resignation of the previous trustees does to end the whole proceedings to the same position as in the case of the death of a party and there is a devolution of interest under Order 22, Rule 10, C. P. C.

15. Recently the Supreme Court in Dikhu Dev v. Som Dass, : [1976]1SCR487 , held that where a suit is brought against any person in a representative capacity and there is a devolution of interest of the representative, the rule that has to be applied is Order 22, Rule 10 and not Rule 3 or Rule 4, C. P. C., whether the devolution takes place as a consequence of death or for any other reason. That was a case where the defendant-mahant died and a new mahant was elected in his place. Reversing the judgment of the High Court, the Supreme Court held that there is no abatement in the case and the failure to bring the new mahant within time is not fatal and consequently directed the proceedings to be heard on merits. Hence we hold that the appointment of the new receiver in place of the previous receiver constitutes devolution of interest within the meaning of O. 22, Rule 10, C. P. C. and there is no abatement of the proceedings and the new receiver can continue the proceedings with the leave of the Court and the decree passed without substituting the new receiver cannot be treated as a nullity.

16. This takes us to the third contention of the appellant that even assuming that the appellant can be restrained from enforcing the decree the Court is bound to make an enquiry into his rights and it has no right to dispossess the third party as Order 40, R. 1 (2), C. P. C. clearly prohibits the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. For this he relies upon the judgment of the Supreme Court in Hiralal Patni v. Loonkaran Sethiya, : [1962]1SCR868 . It is urged that the learned Judge without enquiry into his rights passed the impugned order and it is wholly without jurisdiction and unjust. We agree that even if we treat the decree obtained by the appellant is unenforceable against the receiver, the Court should make an enquiry into his rights or at least permit him to sue the receiver. But in view of the fact that the appellant already filed a suit we thought, it is better to permit him to agitate the question in the civil suit already pending.

Hence we are not bound to make enquiry into his rights as he is not diligent to approach this Court earlier but already started proceedings seeking declaration of his title. In Sreedhar v. Nilmoni, AIR 1925 Cal 681 the Calcutta High Court held: 'An examination pro interesses sou (as to his interests) is never made unless the applicant shows diligence and the Court can decline to exercise its power of enquiry when the applicant has already brought a suit agitating his title.' Hence we think the ends of justice will be met if we permit him to prosecute his suit wherein his title has to be established. Even if we make an enquiry under Order 40 Rule 1 (2) C. P.C. It is summary in nature and the party is not precluded to file a separate suit establishing his title and hence no useful purpose will be served by making an enquiry when the suit is already laid.

17. It is brought to our notice that the Receiver has already filed an application to set aside the ex parte decree and the same is pending. It is clear that the Court below is bound to set aside the ex parte decree as the decree is illegal and the same is liable to be set aside. After the decree is set aside the appellant is free to prosecute the suit and establish his rights. However any order or decree that may be passed by the Court cannot be enforced against the receiver in execution without further leave from this Court. Accordingly we modify the order under appeal subject to the following terms:

(1) The plaintiff in O. S. No. 2818/78 on the file of the VII Assistant Judge, City Civil Court, Hyderabad is restrained from enforcing the decree dated 20th March, 1983 against the Receiver, the respondent herein in any form in any court of law.

(2) The respondent-receiver is directed to prosecute the application to set aside the ex parte decree in O. S. No. 2818/78 dated 20th March, 1983 which is pending before the Court below expeditiously.

(3) The plaintiff in O. S. No. 2818/78 is hereby granted leave to prosecute the suit O. S. No. 2818/78 after the ex parte decree is set aside. However any interim order of injunction or any decree passed finally against the Receiver cannot be enforced against him without further leave from this Court trying C. S. number 14/58.

(4) The mandatory injunction granted by this Court shall stand suspended for a period of three months or till the Court in O. S. No. 2818/78 passed an interim order whichever is earlier, with a direction that status quo as on today shall continue and the plaintiff in O. S. No. 2818/78 shall not make any new constructions and shall not enter the vacant space beyond the old compound wall in Plot No. 3 the disputed plot as shown in the plan filed in C. S. No. 14/58.

18. With these directions, we allow the appeal in part and direct the parties to bear their own costs.

19. Before we part with this case we may observe that it is essential that this Court should frame appropriate rule in exercise of its powers under Section 122, C. P. C. to enjoin on Courts to require the party to obtain leave before any suit is proceeded with against the receiver appointed by a different Court. Such amendment of the rule is imperative as the Civil Courts appear to be oblivious of the principle of great importance to avoid conflict of jurisdictions.

20. Appeal partly allowed.


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