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Muhammad Ishaq Vs. Om Parkash and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in146Ind.Cas.451
AppellantMuhammad Ishaq
RespondentOm Parkash and ors.
Excerpt:
civil procedure code (act v of 1908), order xl, rule 1, sub-rule (2) - scope of--suit for declaration that decree for sale is not binding on plaintiff--order staying execution and appointment of receiver--propriety of. - - if the decree-holder is not going to have his decree executed it is not fair to the decree-holder that the plaintiff should enjoy the income of the property without making any payment. this as per opinion is a very narrow construction of sub-rule (2). if this construction were good there would be no case whatsoever in which a receiver could be appointed......it has however, been contended that the order passed by the learned judge militates against sub-rule (2), rule 1, order xl, civil procedure code. the argument is that as the decree-holder is not entitled to remove the plaintiff from possession of the property the court was not authorized to appoint a receiver of the property. this as per opinion is a very narrow construction of sub-rule (2). if this construction were good there would be no case whatsoever in which a receiver could be appointed. all that sub-rule (2) means is that adhere any of the parties who are subject to the jurisdiction of the court has no right to remove a third party from possession that third party shall be allowed to remain in possession. the parties to the suit being subject to the jurisdiction of t he court.....
Judgment:

1. This is an appeal against an order appointing a Receiver to the estate of the appellant. The history of the case briefly is as follows: The respondents obtained a decree for sale against the plaintiff and others in 1926, being decree No. 219 of 1925. The plaintiff-appellant has now instituted a suit of his own to obtain a declaration that the decree for certain reasons stated in the plaint, is not binding on him. The plaintiff made an application to the court for an injunction restraining the defendants from executing their decree No. 219 of 1925. Thereupon, before the application for injunction could be disposed of, the defendants made an application for the appointment of a Receiver of the property subject to the mortgage. The learned Subordinate Judge heard both the applications together and while he made an order staying the execution of the decree he directed that a Receiver should be appointed of the property ordered to be sold by the decree. The appellant has filed this appeal questioning the validity of the order appointing a Receiver. On the merits there can be no doubt that the order passed by the learned Subordinate Judge is eminently just and fair. If the decree-holder is not going to have his decree executed it is not fair to the decree-holder that the plaintiff should enjoy the income of the property without making any payment.

2. It has however, been contended that the order passed by the learned Judge militates against Sub-rule (2), Rule 1, Order XL, Civil Procedure Code. The argument is that as the decree-holder is not entitled to remove the plaintiff from possession of the property the court was not authorized to appoint a Receiver of the property. This as per opinion is a very narrow construction of Sub-rule (2). If this construction were good there would be no case whatsoever in which a Receiver could be appointed. All that Sub-rule (2) means is that Adhere any of the parties who are subject to the jurisdiction of the court has no right to remove a third party from possession that third party shall be allowed to remain in possession. The parties to the suit being subject to the jurisdiction of t he court can raise no objection whatsoever to its order for the appointment of a Receiver. We hold therefore, that the appointment does not militate against Sub-rule (2), Rule 1, Order XL, Civil Procedure Code. This disposes of the point taken in appeal by the learned Counsel for the appellant. We may point out that several modes of executing are allowed under the Civil Procedure Code, by Section 51. One of these is by the appointment of Receiver. Now in the circumstances of the case, it was open to the court below to say that although the property mortgaged was not to be sold and execution by that method would not be permitted, execution would be permitted by the appointment of Receiver. The appeal has no force and is hereby dismissed with costs.


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