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Sahu Durga Saran Vs. Beni Pershad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All559
AppellantSahu Durga Saran
RespondentBeni Pershad and anr.
Excerpt:
- - we hold therefore that the ground on which the appellant has challenged the execution proceedings and the sale therein is not well-founded......was adjudged insolvent on 8th december 1930, and the present appellant, sahu durga saran,. was appointed receiver, mr. moti ram, the alleged interim receiver, having been previously discharged by an order of 15th november 1928. the receiver, sahu durga saran, made an application purporting to be one under section 47, i.p.c, in the court which...executed the decree of messrs. bhagwan das and co., praying for an order to set aside the auction-sale in favour of respondent 1 on the ground that the court executing the decree was. bound to deliver possession of the property which had been attached to mr. moti ram, the alleged interim receiver and that all the proceedings taken after mr. moti ram demanded delivery of possession were null and void. respondent 1 resisted the application,.....
Judgment:

Niamatullah, J.

1. This purports to be an appeal from an order under Section 47, Civil P.C. The appellant was appointed by the insolvency Court as a receiver of the estate of one Mt. Chaman Devi. Messrs. Bhagwan Das and Co., had a simple money decree against Mt. Chaman Devi. Certain zamindari property was attached in execution of that decree. An application for Mt. Chaman Devi being adjudged as insolvent was made by one of the creditors. The petition was admitted on 18th July 1928. It is allowed by the official receiver, the appellant before us, that Mr. Moti Ram, was appointed an interim receiver on 19th July 1928 under Section 20, Provincial Insolvency Act. This is however in controversy and we shall advert to this question later on. It is not disputed that Moti Ram informed the Court executing the decree-of Messrs. Bhagwan Das and Co., that he had been appointed a receiver and that the Court executing the decree should deliver to him the zamindari. property which had been attached in. execution of the decree to which reference has already been made. Execution proceedings however continued and the zamindari property was sold on. 22nd July 1929, the present respondent 1 being declared to be the auction-purchaser. Possession of the property has since been delivered to the. respondent.

2. Mt. Chaman Devi was adjudged insolvent on 8th December 1930, and the present appellant, Sahu Durga Saran,. was appointed receiver, Mr. Moti Ram, the alleged interim receiver, having been previously discharged by an order of 15th November 1928. The receiver, Sahu Durga Saran, made an application purporting to be one under Section 47, I.P.C, in the Court which...executed the decree of Messrs. Bhagwan Das and Co., praying for an order to set aside the auction-sale in favour of respondent 1 on the ground that the Court executing the decree was. bound to deliver possession of the property which had been attached to Mr. Moti Ram, the alleged interim receiver and that all the proceedings taken after Mr. Moti Ram demanded delivery of possession were null and void. Respondent 1 resisted the application, inter alia, on the ground that Mr. Moti Ram had not been appointed as air interim receiver and that consequently the Court executing the decree was not bound to deliver possession of the property in the custody of the Court to him.

3. The lower Court has upheld respondent l's plea that Mr. Moti Ram had never been appointed interim receiver by the insolvency Court and that it was, by some unfair means that the signature of presiding officer of the insolvency Court was obtained on a printed form of 'parwana' for the appointment of a receiver under Section 56, Provincial Insolvency Act. On that finding the appellant's application was dismissed. The learned Subordinate Judge has based his decision on an additional ground, namely, that the receiver cannot be considered to be the legal representative of the judgment-debtor (in this case the insolvent) and that he could not maintain an application under Section 47, Civil P.C. In the view we are inclined to take on the first question, we do not consider it necessary to express any opinion on the correctness or otherwise of the learned Subordinate Judge's decision in reference to Section 47, Civil P.C. We do not think that the finding of the learn ed Subordinate Judge that Mr. Moti Ram had never been appointed as an interim receiver under Section 56, Insolvency Act, can be assailed. The record does not show any order of appointment under the signature of the presiding officer of the insolvency Court. All that happened was that a printed form, bearing the signature of the Judge, was served on Mr. Moti Ram. It declared him to be a receiver under Section 56 (and not an interim receiver under Section 20, Insolvency Act). On the facts subsequently brought to the notice of the Judge in the insolvency Court, he cancelled the printed 'parwana,' which had been served on Mr. Moti Ram,, pointing out that the latter had never been appointed receiver in the case either under Section 20 or under Section 56, Provincial Insolvency Act. In our opinion, the learned Subordinate Judge was justified in inferring that the signature of the presiding officer had been obtained by some 'trick.' In this view, there can be no doubt that Mr. Moti Ram cannot be considered to have ever been an interim receiver under Section 20. It is not suggested that he was appointed a receiver under Section 56, Insolvency Act. The present appellant was appointed a receiver under the latter section for the first time. Section 52, Provincial Insolvency Act, provides:

Where execution of a decree has issued against any property of a debtor which is saleable in execution, and before the sale thereof notice is given to the Court executing the decree that an insolvency petition by or against the debtor has been admitted, the Court shall, on application, direct the property, if in the possession of the Court, to be delivered to the receiver.

4. It cannot be denied that the Court executing the decree is to deliver possession to the receiver and to no one else, so far, at any rate, as the provisions of Section 52 are concerned. Having 'regard to the finding, that there was no receiver in existence till after the sale in execution of Bhagwan Das and Co.'s decree, the Court executing the. decree could not have acted under Section 52, Civil P.C. We hold therefore that the ground on which the appellant has challenged the execution proceedings and the sale therein is not well-founded. The learned advocate for the appellant addressed a number of ingenious arguments to us in his endeavour to show that the sale of the property in dispute during the pendency of the insolvency proceedings was invalid. We may indicate briefly the nature of his contentions. He argued that, though the order of adjudication was passed on 8th December 1930, after the auction-sale, it related back to the date of the insolvency petition, that is, 18th July 1928, with the result that the insolvent's property, including the zamindari which had been attached in execution of Bhagwan Das and Co.'s decree, became vested in the insolvency Court and in the receiver when subsequently appointed. He argued that the Court executing the decree had therefore no jurisdiction to sell property which, at the date of sale, was not vested in the judgment-debtor but in the insolvency Court or the receiver. We do not feel called upon to express any opinion as to the soundness of this argument, as the application under Section 47 is based, as already stated, on the solitary ground referring to Section 52, Insolvency Act. It will not be fair to the respondent to allow on absolutely new case being set up in this Court. The learned advocate for the respondent has strongly protested against new pleas being entertained, at this stage. He alleges that investigation into certain questions of facts will be inevitable in case the new pleas, to which reference has already been made, are allowed to be raised at this stage. We are unable to say whether this is so. In any case, we think that the appeal should be limited strictly to the grounds raised in the original application under Section 47, Civil P.C. We have already expressed our view on the questions raised by that application.

5. The result is that this appeal fails and is dismissed with costs.


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