1. This is a revision application in an execution of decree case. The decree-holder-applicant Babu Tulsipat Ram is superior proprietor of village Puraini. He obtained on 14-6-1941 a decree from the Court of the Sub-Divisional Officer Malihabad for arrears of under proprietary rent against the opposite parties, Shri Jagat Narain Mathur and Shri Tirbhawan Nath, for Rs. 1075 and future interest and costs. The decree was attempted to be realised in execution by appointment of a receiver, an order in which behalf was passed by the learned Sub Divisional Officer on1-4-1942 in spite of the objections of the judgment-debtors that they had applied under the Encumbered Estates Act and that the decree could not be executed in view of Section 7 of that Act. The judgment-debtors succeeded in having the order set aside by the learned District Judge in appeal on 21-9-1942, and the execution application was, therefore, consigned to records.
2. In the Encumbered Estates Act proceedings a preliminary award was prepared on 7-12-1942 and it was made final on 10-1-1943. Thereafter the decree-holder presented another application on the execution side for appointment of a receiver, but though the Sub-Divisional Officer passed an order in his favour on 6-12-1943 the District Judge in appeal reversed it on 17-7-1941. The present revision application is against that order. It came up for hearing before our brother Kidwai, J., on 6-9-1948 but was referred to a Division Bench in view of the fact that on the point raised for decision there was an apparent difference of opinion between the Judges who constituted the Division Bench which decided the case of Hari Saran v. Har Kishan, 1941 Oudh W.N. 103, Bennett, J. being of the opinion that there could be no appointment of a receiver on account of the prohibition contained in Section 7, Sub-section (3), Encumbered Estates Act and Yorke J. being doubtful on the point.
3. The relevant provisions of Section 7 are contained in Sub-sections (2) and (3) which are as follows:
(2) After the passing of the said order and until the application is dismissed by the Special Judge under Sub-section (3) of Section 8 or proceedings under this Act are quashed under Section 20 or until the Collector has liquidated the debt in full under Section 23 or Section 24 or granted a mortgage under Section 25 or passed orders under Section 27 or Section 28, no decree obtained on the basis of any private debt incurred by the landlord after the passing of the order under Section 6 shall be executed against any of his property, other than proprietary rights in land, which has been mentioned in the notice under Section 11 and the landlord shall not be competent without the sanction of the Collector to make an exchange or gift of, or to sell, mortgage or lease, those proprietary rights or any portion of that property.
(3) After passing of the order under Section 6 and until the Collector has declared in accordance with Section 44 that the landlord has ceased to be subject to the disabilities of this sub-section or until the passing of the order by the Special Judge, referred to in Sub-section (2) of Section 44, no decree obtained on the basis of any private debt incurred after the passing of the order under Section 6 shall be executed against any of the landlord's proprietary rights in land mentioned in the notice published under Section 11 and the landlord shall not be competent, without the sanction of the Collector, to make any exchange or gift of, or to sell, mortgage, or lease those proprietary rights, or any portion of them.
4. The appellant contends that the order for appointment of a receiver amounts to execution of decree against the profits of the under-proprietary lands. As such it is said they constituted property other than 'proprietary rights in land' mentioned in the notice under Section 11, and since the award has already been made final and an order under Section 28, Encumbered Estates Act has been passed it is maintained that the bar ofSub-section (2) does not obtain any longer against the decree holder. According to the appellant the execution by appointment of a receiver is not an execution against the landlord's 'proprietary rights in land', and the lower Court has erred in applying Sub-section (3) to the case. We have carefully considered the matter, but we find ourselves anable to agree with the decree-holder's submission.
5. Section 51, Civil P. C., empowers an execution Court to enforce a decree by appointment of a receiver. By adoption of this mode of execution the Court takes into custodia legis the properties of the judgment-debtor. It appoints its own officer for management of the property; thereafter the income is dealt with according to the directions of the Judge. It has been held that where the law forbids dispossession of the judgment debtor from certain property there can be no appointment of a receiver in respect of it: vide Amir Uddin v. Nanak Shahi : AIR1937All389 and as a corollary it may be deduced that an order for appointment of a receiver does not operate as an execution merely against the rents and profits of the property but against the property itself, under the order the entire management of it goes into the hands of the receiver who performs for the time being all those acts which the owner in the management of the property can perform. The collection of rents and profits and the disbursement of the decretal debt therefrom may be the object of appointing a receiver, but the procedure prescribed is only one of the methods for realisation of the decree from the property of the judgment-debtor and it cannot but be regarded therefore as execution against the landlord's 'proprietary interest in land'. The argument that receivership should be regarded as parallel to the rights enjoyed by a possessory mortgagee which rights are not regarded as 'land' within the definition of that word in Section 2 is, in our opinion, not sound, for Section 2 (d) only excludes the interest of a mortgagee or a thekedar from the conception of land and not the property which is the subject-matter of the mortgage. That a mortgage is not land is obvious, but it is difficult to regard proprietary interest in land which is the subject matter of a mortgage as being different from land as defined in the Act. Similarly though a mortgagee may not be a 'landlord' within the meaning given to that word under Section 2 (g), the landed property which is given to him as security does not cease to be 'proprietary right in land' of the mortgagor. It is hardly profitable, therefore, to examine the present case from the point of view of the alleged analogy between the position of a receiver and that of a mortgagee.
6. Execution against proprietary rights in land may take many forms. It may be an execution by delivery of possession, by attachment and sale, by enforcing fulfilment of an order forspecific performance of a contract or for any other act or by appointment of a receiver and so on. In all these cases the Court in one way or the other exercises control over the proprietary rights in land of the judgment-debtor landlord.
7. Under the scheme of the Encumbered Estates Act the debtor's proprietary rights in land as well as other property is made available to the Collector for liquidation of the debts and after the passing of the order under Section 6 the landlord is not competent to create any interest in derogation of the creditor's rights. There is no bar to the execution against the property other than proprietary rights in land after the orders referred to in Sub-section (2) are passed because that property can no longer to be availed of for purposes of liquidation. The bar against proprietary rights in land, however, continues till the Collector has declared, in accordance with Section 44, that the landlord has ceased to be subject to the disabilities imposed on him by Sub-section (3) of Section 7, because the law desires to leave the powers of the liquidating Court unfettered in respect of his properties notified under Section 11 till the close of all proceedings under the Act. The puraini property, it is not denied, was included in the notice published under Section 11. The order for appointment of a receiver in respect of it constitutes a execution against the property to which Sub-section (3) of Section 7 relates. Here we may mention that the order of the Sub-Divisional Officer, Maliahabsd, whereunder the receiver was appointed is in the following terms:
'Order that the share of the judgment-debtors be attached. The Tahsildar of Malihabad is appointed as receiver. The receiver will pay the land revenue, the instalments due under the award, deduct collection charges, and then pay the balance towards the satisfaction of the decree.'
The disability imposed by Section 7 (3) on execution was, we are clear, in force till the time when the decree, holder applied for appointment of a receiver on 10-8-1943. We agree with conclusion of Bennett, J., in Hari Saran v. Har Kishan, 1941 Oudh W.N. 103, but we would like to mention, if we may do so with respect, that Section 9 (a) which provides in certain circumstances for the appointment by the Special Judge of a receiver of the landlord's proprietary rights in land has not much materiality to the point at issue. The matter, in our opinion, is to be looked at purely from the view point of Section 7 (3) and in the light of the scheme underlying Encumbered Estates Act. An appointment of a receiver of proprietary right in land pending the determination of the proceedings under the Act, it would seem obvious, would necessarily upset the liquidation scheme.
8. We uphold the decision of the learned District Judge and dismiss the plaintiff's revision with costs.