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Makhan Lal Vs. Mushtaq Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All419
AppellantMakhan Lal
RespondentMushtaq Ali
Excerpt:
- - one might just as well say that as there is no prohibition in the code to a judge appointing himself as receiver at a large salary, that he has, therefore, jurisdiction to do so. the appointment of a receiver by way of execution is an exceptional remedy derived from english practice; it is, therefore, clearly intended to provide the machinery for carrying out that form of execution which has already been provided for by section 51 of the code. we are clearly of opinion that the provisions of order 34 in the execution of mortgage-decrees allow no loophole for the application of the procedure provided by order 40 to mortgage-decrees......questions. in our view, order 40, of the first schedule has nothing to do with the execution of mortgage decrees. the learned judge says that there is no prohibition in law a against the appointing of a receiver in the case of a mortgage decree. there are great many things which are not prohibited in the code. one might just as well say that as there is no prohibition in the code to a judge appointing himself as receiver at a large salary, that he has, therefore, jurisdiction to do so. in our opinion, the matter becomes quite plain when order 40, which deals with the appointment of a receiver, is understood. the appointment of a receiver by way of execution is an exceptional remedy derived from english practice; indeed in england it is called equitable execution. it is quite clear.....
Judgment:

1. This order is wholly without jurisdiction. We do not propose to discuss the various cases which the learned Judge has referred to in Indian Cases, because some of them contain dicta of a very wide character, which open up a variety of rather debatable questions. In our view, Order 40, of the First Schedule has nothing to do with the execution of mortgage decrees. The learned Judge says that there is no prohibition in law a against the appointing of a Receiver in the case of a mortgage decree. There are great many things which are not prohibited in the Code. One might just as well say that as there is no prohibition in the Code to a Judge appointing himself as Receiver at a large salary, that he has, therefore, jurisdiction to do so. In our opinion, the matter becomes quite plain when Order 40, which deals with the appointment of a Receiver, is understood. The appointment of a Receiver by way of execution is an exceptional remedy derived from English practice; indeed in England it is called equitable execution. It is quite clear that it is intended to be a form of execution by this Code. Section 51 of the Code, that is to say, in the controlling part of the Code, lays down the various forms of execution. These include the appointment of a Receiver. Order 40 is the only provision to be found in the First Schedule dealing with the appointment of a Receiver. It is, therefore, clearly intended to provide the machinery for carrying out that form of execution which has already been provided for by Section 51 of the Code.

2. The case of mortgage decrees is quite special. It is all contained in Order 34, Subordinate Judges ought not to require being reminded in these days that Order 34, was transferred from the Transfer of Property Act, because difficulties had arisen and confusion had occurred in differentiating between the case of execution of mortgage-decrees and other decrees, and the enactment of the provisions of Order 34 for enforcing mortgage decrees was specially brought into the Schedule and placed into watertight compartments in order to prevent misunderstanding; We are clearly of opinion that the provisions of Order 34 in the execution of mortgage-decrees allow no loophole for the application of the procedure provided by Order 40 to mortgage-decrees. We must allow the appeal and set aside the order of the Court below with costs here and below including fees in this Court on the higher scale.


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