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Bhagban Sahu and anr. Vs. Dasarathi Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 118 and 133 of 1952
Judge
Reported inAIR1954Ori178; 20(1954)CLT115
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 15 - Order 40, Rule 1; Transfer of Property Act - Sections 100
AppellantBhagban Sahu and anr.
RespondentDasarathi Sahu and ors.
Appellant AdvocateG.C. Das, ;H. Sen and ;P.V.B. Rao, Advs.
Respondent AdvocateD.V.N. Rao, ;B.K. Pal, ;P.C. Chatterjee, ;J. Brahma and ;J.L. Narasimham, Advs.
DispositionRevision dismissed
Cases ReferredKristachandra v. Kristasakha
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohapatra, j.1. these civil revisions are against the order dated 5-5-1952 of sri p. c. de, subordinate judge of berhampur, in o. s. no. 23 of 1943, directing the receivers to realise, by summary procedure,the unpaid balance consideration of rs. 3,75,000/- in respect of sale-deeds dated 14-11-1947 in favour of the petitioners (national agencies at cuttack and berhampur) for a consideration of rs. 6,00,000/-. the subject matters of the aforesaid conveyances dated 14-11-1947 are askasugar works and distillery at aska and paramananda saw mills at russelkonda.2. the parties to the partition suit no. 23/ 1943 are the members of the berhampur sahu family well known in the locality as an aristrocratic and rich family. it is to be mentioned that the family are involved in heavy debts and there.....
Judgment:

Mohapatra, J.

1. These Civil Revisions are against the order dated 5-5-1952 of Sri P. C. De, Subordinate Judge of Berhampur, in O. S. No. 23 of 1943, directing the receivers to realise, by summary procedure,the unpaid balance consideration of Rs. 3,75,000/- in respect of sale-deeds dated 14-11-1947 in favour of the petitioners (National Agencies at Cuttack and Berhampur) for a consideration of Rs. 6,00,000/-. The subject matters of the aforesaid conveyances dated 14-11-1947 are AskaSugar Works and Distillery at Aska and Paramananda Saw Mills at Russelkonda.

2. The parties to the Partition Suit No. 23/ 1943 are the members of the Berhampur Sahu family well known in the locality as an aristrocratic and rich family. It is to be mentioned that the family are involved in heavy debts and there are quite a number of creditors including judgment-creditors. On the basis of a petition for appointment of receiver in respect of the properties involved in the partition suit, by the order of the High Court dated 21-12-1944, the two defendants (defendant No. 1 Damodar Sahu and defendant No. 19 Dasarathi Sahu) were appointed as receivers.

Defendant No. 1 was placed in charge of the management of the aforesaid two important items of properties, that is, the Sugar Distillery at Aska and Paramananda Saw Mills at Russelkonda. The receivers, during the course of their management of the properties of the Sahu family, were earnestly attempting to discover ways and means for discharging the outstanding debts of the members of the family and the debts binding on the family, as a whole. Defendant No. 1 was carrying on negotiations for selling of the aforesaid two mills in his charge and the negotiations advanced a good deal with the present petitioners, National Agencies of Cuttack, the consideration money having been fixed for a sum of Rs. 6,00,000/-, that is to say, Rs. 4,00,000/- for the Aska Sugar Distillery and Rs. 2,00,000/- for the Saw Mills at Russelkonda.

As a result of these negotiations, on 17-5-1947, 3 draft agreements were filed for approval of the Court in the partition suit between the National Agencies on the one side and the plaintiff and defendants 19 to 22 in respect of one agreement, and defendants 12 to 14 in respect of another and other defendants in respect of the third on the other. On that very day, the Court accorded permission for sale on the terms embodied in the aforesaid draft agreements and approved the terms. The fair copies of agreements were filed on 7-8-1947, and the agreements were approved. The Court, however, ordered :

'It appears that a sum of Rs. 1,00,000/- has already been deposited by the purchasers but no intimation from the treasury has been received. Call on 23/8.'

The purchasers (the National Agencies, Cuttack) had taken time to make deposit in accordance with the terms of the agreements and by 1-10-1947, a sum of Rs. 2,00,000/- had been deposited in Court. It is to be noted here that another sum of Rs. 25,000/- had been paid in cash to some of the parties, that is, Iswarachandra Sahu and Dasarathi Sahu, personally which brings the total amount paid by the purchasers (National Agencies) to Rs. 2,25,000/- leaving a balance of Rs. 3,75,000/-. Six draft sale-deeds were approved by the Court on 6-11-1947, and 6 sale-deeds were executed and registered on 14-11-1947. Two sale-deeds were executed by defendant No. 1 in respect of twelve annas share, in his capacity as a receiver, of the two aforesaid mills -- one sale-deed in respect of each; two other sale-deeds were executed by Dasarathi Sahu (defendant No. 19) in respect of two annas interest in the said two mills; -- one Kabala in respect of the aforesaid mills; and similarly two other Kabalas were executed in respect of the balance two annas interest in the said mills.

On the petition filed by the plaintiff, the Court ordered the receiver, to deliver possession on 17-11-1947. The receiver, in accordance with the order passed by the Court, actually delivered possession of the Sugar Mills at Aska on 20-12-1947 and obtained receipt of such delivery of possession from the purchasers. The receiver also delivered possession of the Saw Mills to the purchasers on 26-6-1948 and obtained receipt therefor. Ever since the actual delivery of possession in December 1947 and June 1948, the purchasers are all along in possession of the aforesaid two mills but have not deposited the balance amount of Rs. 3,75,000/-.

3. A preliminary decree in the partition suit having been passed in terms of the compromise between the parties on 23-4-1951, the Court subsequently appointed 5 receivers to take charge of the management of the assets of the family. These five receivers have filed the present petition out of which these Civil Revisions arise for realisation of the balance consideration money by summary procedure. There is no dispute that the outstanding balance of the consideration in respect of the six sale-deeds is Rs. 3,75,000/-. The purchasers have not put forth any substantial plea in respect of their aforesaid liability. The only plea, put forth and seriously contended before the Court below and before us, is that the liability cannot be enforced by means of summary procedure, but is enforceable only by virtue of a separate suit to be brought by the receivers.

The main question to be determined, therefore, is whether it is competent for the Subordinate Judge of Berhampur to take summary proceedings in O. S. No. 23/43 for realisation of the aforesaid balance consideration, or that the Court has got to direct the receivers to file a separate suit on the termination of which alone the money is realisable.

4. Mr. G. C. Das, appearing on behalf of the petitioners, has strongly argued that the sales, in questions, are private sales and, at best, they can be termed as sales under the Court and not sales by the Court. It is permissible to realise the consideration money by summary procedure if the sales were Court sales, or, in other words, sales by the Court. His main argument is that, in the present case, the negotiations were being carried on by the parties to the suit; but in view of the peculiar feature in the case that a receiver was appointed to manage the two aforesaid mills the receiver had to be consulted from time to time and as the properties were costodia legis the permission of the Court had to be taken at each important stage and for the completion of the transaction; but nevertheless the transactions are, in substance, private transactions to which the Court had given its permission simply as they were custodia legis, but the real vendors were members of the Sahu family. According to Mr. Das, such transactions can at best be termed as sales under the Court, that is, with the permission or orders of the Court and not by the Court. The proper remedy, therefore, for realisation of the amount is by a separate suit.

5. The first decision on which Mr. Das relies upon is a decision of Mr. Justice Macpherson in the case of -- 'Chandranath Biswas v. Eiswanath Eiswas', 6 Beng LR 492n (A) of the year 1870, the full report of which appears in the case of -- 'Wilkinson v. Gangadhar', 6 Beng LB 486 (B). In that case Mr. Hogg, the Court receiver, made an application for an order that the purchaser of certain property sold by the receiver under the orders of the Court to complete the purchase according to the condition of sale; and that, in default, the property may be attached, or a resale of the property at his risk may be ordered. The application was opposed mainly on the ground that the sale not being by the Court the receiver had no right to make a summary application of this description but must enforce his right by bringing a suit against the purchaser.

His Lordship, dismissing the application as not maintainable, made the following observations :

'In no book of practice can I find any authority for saying that a sale of property by a receiver is, in any sense, a sale by the Court; and nowhere do I find that a sale by a receiver has been treated as a sale by the Court.'

But nevertheless just subsequent to these observations he finds :

'But it is true that, in some cases, sales by a receiver have been confirmed by this Court, preparatory to possession being ordered to be delivered to the purchaser -- the receiver not being at liberty to give possession without an order. An instance of this occurred on the 21st day of December last, when an order was made in the suit of -- 'Monmothonath Dey v. Ashutosh Dey', confirming a sale by the receiver, and ordering the purchaser to be put in possession.'

Further on his Lordship remarks :

'In saying this, I do not mean to say that salesby the Court do not often, under special circumstances, take place under conditions similarto those under which the sale which, is thesubject of this application was made.'

But the most important part of the judgment, which really distinguishes the present case from the one which was before his Lordship, is contained in the observations as follows :

'It is clear that the Court cannot act against a person who is not a party on the record unless he has come in and done some act which subjects him to the jurisdiction of the Court in this suit.'

Without discussing any further as to whether the reasons given by Macpherson J. were sound and acceptable, we will rest content after observing that the present case is clearly and entirely distinguishable on account of the special feature that the purchasers have definitely subjected 1 themselves to the jurisdiction of the Court having seisin over the partition suit which will appear on a consideration of the following circumstances.

6. As it appears from the order dated 17-5-1947, Bhagaban Sahu, representative of the National Agencies, had deposited a cheque for Rs. 10,000/- of Comilla Banking Corporation and undertook to deposit the amount in cash and take back the said cheque. Bhagaban Sahu of M/s National Agencies had also appeared in the suit through their advocate Sri K. Patnaik. It is necessary to quote the order dated 23-6-1947 :

'Sri K. Patnaik, Advocate of Sri Bhagaban Sahu of Messrs National Agencies files a petition praying that on deposit of Rs. 10,000/- the cheque deposited on 17-5-1947 may be returned to him and he may be also granted two chalans for depositing sum of Rs. 10,000/- and Rs. 90,000/- in pursuance of the order dated 17-5-1947 and the agreements filed.'

The order dated 20-8-1947 is also relevant to be noted in this connection which runs as follows :

'Bhagaban Sahu partner of the National Agencies, Cuttack files a petition today in person praying to extend time till 5-9-1947 to deposit into Court the second deposit of Rupees one lakh on the ground that his father suddenly expired on 18-8-1947 and could not deposit today. Put up on the date fixed.'

The National Agencies had further taken adjournments from time to time to make the aforesaid deposits and on 8-10-1947 they filed a memo reporting that the second one lakh rupees had been deposited into treasury on 1-10-1947.

7. But the most important feature to show that in fact the National Agencies had submitted to the jurisdiction of the Court appears from the petition filed by the National Agencies on 18-10-1947. The contents of the petition run to the effect that the draft sale-deeds had been completed and approved by the parties and the National Agencies also had made deposits of two lakhs rupees or so; but it transpires that the two mills had been attached by some of the decree-holders against the members of the Sahu family. The petition further recites that under the terms of the agreements, as approved by the Hon'ble Court, the vendors are required to execute the sale-deeds free from all incumbrances. So it is necessary that the vendors be ordered to free the property from incumbrances, otherwise the National Agencies may be allowed to get refund of the amount deposited in Court with such compensation as the Court will deem proper.

On this petition, six other petitions in six execution cases brought by the decree-holders, were filed under the provisions of Order 21, Rule 83, Civil P. C., for the purpose of lifting the attachments. In the present partition suit, the Court passed an order on 6-11-1947 on the basis of the petition tiled by the National Agencies :

'Let necessary certificate be issued under Order 23. Rule 83, Civil P. C. with following reservations that the amounts of the consideration should be deposited in Court by the purchasers, and no further payment made to the parties directly without the leave of the Court.'

We are definitely of the view, on a consideration of the above circumstances, that the National Agencies had submitted to the jurisdiction of the Court and made themselves bound to deposit the balance consideration money in Court. It is to be noted here that by the time this order dated 6-11-1947 was passed the balance consideration money which was outstanding was Rs. 3,75,000/-which was ordered by the Court to be deposited in Court and the order was binding upon the purchasers.

8. Mr. Das has drawn our attention to a decision of Mr. Justice Fletcher, sitting singly in the original side of the Calcutta High Court, in the case of -- 'Golam Hossein v. Patima Begum', 16 Cal. WN 394 CO. Fletcher J. observed :

'A sale by a Receiver under direction of Court is not a sale by Court and in such a sale the Court does not grant a sale certificate nor does it confirm the sale.'

Fletcher J. draws a distinction between two classes of sales, 'sales by the Court and sales under the Court.' According to him, sales by the Court are cases in which the Court makes a title to the purchaser and the Court confirms the sale and issues a sale certificate. The second class is where the Court authorises a trustee, receiver or other person holding property to sell the property and the sale is made out of Court, the Court, while authorising or directing the sale, does not make any title to the purchaser and, in such a sale, the Court does not grant a sale certificate nor does it confirm the sale.

In our opinion, this case is absolutely of no assistance to us. The only point involved in that case is to determine whether a sale by a receiver under the direction of the Court is such a sale as to enable or require the purchaser to obtain 'a sale certificate'. The pertinent question, with which we are confronted, that is to say, whether in a summary procedure the Court can enforce the unexecuted part of the contract entered under its direction, or that the unpaid balance money can be realised by summary procedure instead of filing a suit when the sale had taken place at the intervention of the Court at each and every step, was not before his Lordship.

9. Our attention has also been drawn to an-other decision of the same Judge (Fletcher J. sitting singly in the original side of the Calcutta High Court in the case of -- 'Jogemaya v. Akhoy Coomar', 40 Cal 140 (D), In that case also this pertinent question does not seem to have been decided even though a similar question was raised by Mr. B. C. Mitter, appearing on behalf of the defendant-petitioner, in the case.

The matter arose by way of a review in respect of a sale held by the Commissioner of Partition under the provisions of an order passed by theCourt to sell the property. The sale, in that case, was held under the condition that the purchaser was bound to accept whatever title the vendor might have in the property and will not be entitled to question on the point of title. This condition was laid as No. 9 in the sale proclamation. The question, therefore, arose whether the purchaser could agitate the point of title of the vendor before the same Court and his Lordship found that the point could be agitated. Here also Fletcher J. makes observation distinguishing the two classes of sale, that is, sales by the Court and under the Court as in the previous case.

10. We will now refer to a decision of Sir John Stanley, Knight, Chief Justice and Mr. Justice Sir William Burkitt in the case of --'Kanhai Lal v. Kalka Prasad', 27 All 670 (E), relied upon by the petitioners. There in pursuance of orders passed by Court in the exercise of insolvency jurisdiction, certain revenue paying property of the insolvent was sold by the Collector by private contract and not at public auction. It was held that such a sale did not oust the pre-emptive rights of such persons as were otherwise entitled to claim pre-emption.

The point that arose for determination in that case was whether such a sale held by the Collector not at public auction but by private contract, even though made by the orders of the Court, is a compulsory sale in which case alone the rights of pre-emption of co-sharers cannot be enforced. The undisputed position in that case is that the right of pre-emption cannot be enforced only in the cases of compulsory sales and not otherwise, as in the case of compulsory sale in execution of a decree the sale takes place after the issue of a sale proclamation which, it is not unreasonable to assume, becomes known to all persons having pre-emptive rights.

Their Lordships rightly found that such a sale could not be deemed to be a case of compulsory sale and, as such, the pre-emptor could exercise his right of pre-emption, It is not a case where the powers of the Court, by way of a summary procedure, were invoked to enforce the unperformed part of the particular transaction.

11. But, on behalf of the opposite parties, that is, the receivers, our attention has been drawn to a few decisions which seem to be exactly to the point.

We will first deal with an old decision of Mr. Justice Trevelyan in the case of -- 'Surendro v. Doorgasoondery', 15 Cal 253 (F). In that suit a Court receiver was appointed to manage the suit properties and during the course of management, by the order of the Court, the receiver leased out certain properties in favour of one Sarodapersaud Soor, a stranger to the suit. Although the present lessee obtained possession and the receiver obtained rent from him, no lease had yet been executed. After the suit was dismissed in appeal, the lessee made an application to the Court, under whose orders the receiver had leased out the properties to him, to execute a lease-deed in his favour. The two questions that arose for determination in the case were :

(i) Will the Court entertain an application by the proposed lessee with whom a contract for lease has been made for the execution of the lease, or is it necessary that in order to enforce his right he should bring a suit for specific performance? and

(ii) Supposing such application to be possible when a suit is pending, does the dismissal of the suit prevent such an application?

His Lordship observed :

'A Court has complete power to enforce summarily a contract made by it when managing or administering an estate, whatever that contract may be. Such power of enforcing subsisting contracts made by it is not affected by the fact that the Court had ceased to manage the estate before such contract is carried out by reason of the dismissal of the suit under an order in which the Court had derived its power of management.'

His Lordship, therefore, passed a final order on the application of the lessee in the exercise of the summary power for the execution of a lease in his favour. The case before Mr. Justice Trevelyan was even the worse, because the suit, by the time of the application invoking the summary powers of the Court, had been dismissed and further that the lessee was a stranger to the suit.

12. We should like to refer next to another decision of Mr. Justice Sale, sitting singly in the original side of the Calcutta High Court, in the case of -- 'Minatoonnessa Bibee v. Khatoonnessa Bibee', 21 Cal 479 (G). There was a sale by a receiver appointed by the Court under the orders of the Court, the purchaser had not obtained possession and made an application to the Court who delivered possession to him in the exercise of its summary powers and the Court ordered possession to be delivered to the purchaser without directing him to bring a fresh suit for possession. Sale J. observed :

'But there are cases in this Court in which sales by a Receiver have been regarded as 'sales by the Court', and orders for possession have been obtained by the purchasers under the Code.'

His Lordship then refers to several unreported cases wherein the summary power was exercised on the position that the sales were by the Court. He, therefore, concludes on the authority of the number of unreported cases of the Calcutta High Court, discussed before him, that the sales by the receiver under the orders of the Court have been treated as sales by the Court.

13. Mr. D. V. N. Rao, appearing on behalf of the opposite parties, has drawn our attention to a recent decision of the Patna High Court in the case of -- 'Nasir Ahmed v. Lutf Ahmed', AIR 1949 Pat 496 (H), where in a pending suit for dissolution of the partnership firm owning a sugar factory a receiver was appointed to deal with the cash. The firm had leased out the factory to a stranger for two seasons at a certain yearly rent. The lessee did not pay the rent in full and therefore on application of the receiver the Court ordered that a letter be sent to the Manager of the Bank with whom the lessee had mortgaged the entire sugar factory in his possession directing the Manager not to pay any money of the sale proceeds of the sugar without the permission of the Court.

The Court further ordered the lessee preventing him from making withdrawals from the Bank. It was strongly contended on behalf of the lessee that the orders upon the Bank and on himself were without jurisdiction. Particular reliance was placed upon the feature that by the time the orders were passed the lease had terminated by efflux of time.

It was held by their Lordships (Agarwalla C. J. and Narayana J. -- the leading judgment being of Narayana J.) that there was no substance in the contention that the orders were without jurisdiction, relying upon the position that the lessee in entering into an agreement with theCourt through the receiver submitted himself to the jurisdiction of Court and an injunction could be granted against him even though he was not a party to the suit. Narayana J. in the course of his judgment, relied upon two English decisions reported in -- 'Walton v. Johnson', (1848) 60 ER 654 (I) and -- 'Casamajor v. Strode', '.1823) 57 ER 152 (J).

In the case reported in (1823) 57 ER, 152 (J), the judgment of Vice-Chancellor (Sir John Leach) is only in one sentence running to the effect :

'The purchaser under a decree does, by the act of purchase, submit himself to the jurisdiction of the Court as to all matters connected with that character. Take the injunction as prayed.'

Similarly in the case reported in -- '(1848) 60 E R 654 (I)', the judgment of Vice-Chancellor (Sir L. Shadwell) is also very short running to the effect:

'The tenant having entered into an agreement with the Court itself by means of the receiver: I do not think it necessary that a bill should be filed against him. Take an order for an injunction in the terms of the motion.'

These two decisions, even though they were not noticed by the eminent English Judges deciding the cases reported in -- '15 Cal 253 (P)'; -- '21 Cal 479 (G)', as discussed above, are helpful for the proposition that the purchaser or the lessee, as the case may be, having entered into a contract for sale or lease with the Court has submitted to the jurisdiction of the Court and the Court can enforce any unperformed part of the undertaking by a summary procedure without driving the parties to a fresh suit.

14. Mr. Rao has drawn our attention to a very recent decision, on the point, of the Travancore-Cochin High Court reported in -- 'T. K. Sivarajan v. Official Receiver', AIR 1953 Trav-Co. 205 (K). There a lease was granted by the receiver appointed under the orders of the Court in favour of a stranger and one of the terms of the lease was that he would surrender possession in favour of the lessor on the expiry of the term of the lease. The question that arose before their Lordships was whether possession could be recovered by an application to the Court in a summary procedure or that a separate suit had got to be brought for the purpose of recovery of possession from the lessee. On a discussion of some of the decisions, discussed above, their Lordships concluded that the lessee having expressly undertaken to surrender possession on the expiry of the lease the Court had jurisdiction to enforce this undertaking by summary procedure to recover possession.

Their Lordships held:

'The summary enforcement of the undertaking thus taken by the Court is only a step towards the discharge of the duties of the Court in the management of the estate and it cannot be said that the Court had lost its jurisdiction in that direction merely because the property has been put in the possession of a lessee.'

15. On a review of the above decisions, we are definitely of the view that, as in the present suit for partition the receiver was appointed for the purpose of proper management of the estate of the family during the pendency of the suit and the receiver in due course of his management was negotiating for the purpose of discharge of outstanding decretal dues against the family & further as the transactions in dispute were entered into and completed with the approval and permission of the Court at each stage of their development for the purpose of discharging the debts of the family, the Court can, in the exercise of its summary powers, take proper steps for realisation of the unpaid purchase-money from the purchasers who have definitely submitted to the jurisdiction of the Court by their consistent conduct all throughout and made themselves bound by the order dated 6-11-1947 directing the purchasers to deposit balance consideration in Court as we have indicated above while distinguishing the judgment of Macpherson J. in the case of -- 'Chandranath v. Biswanath', (A).

16. Mr. Das, however, at last, placed strong reliance upon a decision of the Calcutta High Court reported in -- 'Kristachandra v. Kristasakha', 86 Cal 52 (L), the judgment 'being of Woodroffe J. in the original side. In that case, the lease had been granted by the receiver under the orders of the Court to one of the parties to the suit. After the transaction was completely effected and the lessee was in possession of the leasehold, an application was filed to set aside the lease on the ground of collusion, fraud &c.; Woodroffe J. refused to exercise summary powers to set aside the lease on investigation of the grounds for impeaching the transaction and observed that the proper remedy was by way of a suit.

The case is clearly distinguishable on account of the reason that the transaction of lease had already been completed and nothing remained to be done in respect thereof. The lease itself was being impeached on grounds of fraud and collusion and the Court was asked to set aside the lease. But in our case the purchasers have not deposited the balance consideration of Rs. 3,75,000/- as ordered by the Court, by its order dated 6-11-1947, and as we have observed earlier the purchasers, being parties to the order itself, and as the order was passed on their application for lifting of the attachment, are bound by the same order.

Now, therefore, when the purchasers have left unperformed a major part of their duty in respect of the transactions, the Court can enforce its own order by way of a summary procedure in ordering for realisation of the unpaid purchase-money. The sale-deeds in respect of twelve annas interest of the Aska Sugar Distillery and the Paramananda Saw Mills have been executed by the receiver in his capacity as receiver; but the other sale-deeds in respect of balance of four annas interest have been executed by the four annas cosharers, but nevertheless the latter set of sale-deeds has been executed with the permission, approval, sanction and orders of the Court. We are of the view that the sales in question are sales by the Court even though they are not sales in execution of decreesor compulsory sales.

17. Mr. Das has taken up another ground relying upon certain terms of the sale-deeds which amount to creation of a charge on the properties sold for the balance of the unpaid consideration money. His contention is that the charge cannot be enforced in a summary manner but preliminary and final decrees are essential for the purpose of enforcing the charge under the provisions of Order 34, Civil P. C. He particularly relies upon Order 34, Rule 15 which runs as follows:

'All the provisions contained in the Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of Section 58, and to a charge within the meaning of Section 100, Transfer of Property Act, 1882.'

In order that the present case may come under the provisions of Order 34, Rule 15, it is essential that it must be a charge under the provisions of Section 100,Transfer of Property Act, Section 100 contemplates of only two of the charges, that is, either by act of parties, or by operation of law. In the present case, as we have already held, the sales being sales by the Court, the charge, in respect of the unpaid purchase-money contained in the terms of the sale-deeds, is not one either by act or parties or by operation of law. It is a well recognised principle that the Court is not a juridical person who can sue or be sued against. The present case, therefore, is not covered by the provisions of Order 34, Rule 15.

18. The last point urged on behalf of the petitioners is that the Court ought not to take steps for realisation of the unpaid consideration money by a summary procedure as the property conveyed has now vested in the third party. According to the petitioners, the Orissa Sugar Distillery and Timber Mills Limited is a juridical person being a Company duly incorporated under the provisions of the Indian Companies Act (Act 7 of 1913). The petitioner have produced the certificate incorporating the said Company under the provisions of the Indian Companies Act, dated 14-11-1950, granted by the Assistant Registrar, Joint Stock Companies, Orissa.

It is to be noted here that on the previous occasion, when this objection was taken on behalf of the petitioners, an order was passed by this Court making the said Company as a party to these proceedings. Notice was eventually taken to the Company and the services were found sufficient. But inspite of the services being sufficient no one appeared on behalf of the said Company before us raising any objection against the order passed by the trial Court to take steps for realisation of the money by a summary procedure.

Furthermore, there is no evidence placed before us to show that, in fact, the present assets, that is, the two mills at Aska and Russelkonda, have been transferred in favour of the said Company. It is also clear to us that even if the said Company is the transferee, as alleged, it is in the position of a pendente lite transferee, and, as such, is hit by the principle of lis pendens. It is, therefore, bound by any order passed by the Court to which its transferers were parties and the transferors were bound by the same order. As we have already made it clear, the National Agencies are bound by the order dated 6-11-1947 passed by the Court directing the National Agencies to make a deposit of the consideration money in Court. As such, the Court is perfectly entitled to enforce its own order in a summary manner against the National Agencies and their pendente lite transferees also.

19. In conclusion, therefore, we find no substance in these Civil Revisions which are accordingly dismissed with costs. Hearing fee is assessed at two hundred rupees (Rs. 200/-).

Narasimham, J.

20. I agree.


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