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Hadu Goudo and ors. Vs. Dayanidhi Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberM.A. No. 78 of 1965
Judge
Reported inAIR1970Ori196
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
AppellantHadu Goudo and ors.
RespondentDayanidhi Sahu and ors.
Appellant AdvocateM.S. Mohanty, Adv.
Respondent AdvocateG. Rath, Adv.
DispositionAppeal dismissed
Cases ReferredJamilur Rahaman v. Laxmi Narayan
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - according to him, while the general title in respect of the disputed properties was the subject-matter of litigation in the partition suit in which receivers had been appointed, in consequence of different statutes coming into force like the temporary tenancy legislations and the orissa estates abolition act different consequences had arisen and the learned subordinate judge should at least have applied his mind to find out the incidence of these statutes on the disputed properties and should have further examined as to whether the alienor damodar sahu had any personal interest in these properties which could be duly conveyed under the various..........as an officer of the court for the ultimate successful party |in a litigation. the position of a party receiver is not different in law. ahmad, j. |in air 1959 pat 582, jamilur rahaman v. laxmi narayan examined a case of this type and held,'in law it is well established that in certain circumstances in matters like this the court may resort to summary proceeding and award relief both for or against a third person who is not a party to the suit. this is based on the principle that once a courtis in possession of a property in custodia legis through a receiver, it is the duty of the court to see that the property is kept intact and secure in the interests of those for whom the court holds it. necessarily, therefore, if a third person comes to deal with that property on the basis of a.....
Judgment:

R.N. Misra, J.

1. This is an appeal directed against the order dated 3-2-65 passed by the learned Subordinate Judge, Berhampur, directing recovery of possession of certain properlies which had been sold away by the ex-receiver in favour of the appellants without authority of the court.

2. In T. S. No. 23 of 1943 there was a compromise in April 1951. The subject matter of the title suit related to vast immovable properties and a running business. Receivers were appointed to be in charge of the properties. Damodar Sahu, a member of the family, came to be appointed as a receiver. In February, 1959 Damodar appointed an authorised agent and in [July, 1959 there were a number of transfers under which properties which were the subject matter of the litigation and in respect of which receiver had been appointed were alienated in favour of a number of persons. In April, 1961 Damodar was discharged from receivership. , An application was made in the court of the learned Subordinate Judge purporting to be under Order 40, Rule 1 read with Section 151, Civil P. C. on 6-11-63 by Dayanidhi Sahu who happens to be a party and receiver for eviction of the transferees and for recovery of possession of the properties. As it appears from the schedule, the extent of properties transferred was about 88 acres. The learned Subordinate Judge called upon the transferees to file their objection and many of them appeared and contested the proceeding. The learned Subordinate Judge took into consideration the various contentions raised on behalf of the transferee-opposite parties. Their first contention was that the petitioner had no locus standi. Secondly they contended that the petition was not maintainable in law without impleading the State of Orissa as a party mainly on account of the fact that some of the properties had vested in the State of Orissa by operation of law under Act I of 1952. The third contention was that the estate having already vested in the State Government the relief for eviction was not maintainable. All these contentious were negatived by the learned Subordinate Judge and he came to hold that the sale deeds were illegal and void, and the respondents were liable to be evicted from the disputed lands. He accordingly called upon the transferees to make over the vacant possession of the disputed properties under their possession to the petitioner receiver within a month from the date of the order failing which the receiver was permitted to take possession by execution.

3. The appeal in this Court has been dismissed as against respondents .2, 3, 7, 15to 21, 22 and 25 by two separate orders being orders Nos. 17 and 29. The dismissal of this appeal may not lead to total abatement on account of the fact that the alienations which were attacked in the proceeding were different and the causes of action were independent and severable. As it appears, these respondents are also alienees who have not joined in the appeal as appellants.

4. Mr. Mohanty, learned counsel for the appellants raised two contentions. According to him, in a summary proceeding of this nature title to the disputed properties should not have been gone into and concluded. He further contends that a reasonable and adequate opportunity of contest has not been given to the alienees. Even the documents which they had filed in the court below, as would appear from the impugned order, were not exhibited and taken into account to find out whether the title that has been conveyed to the alienees should be sustained or not. According to him, while the general title in respect of the disputed properties was the subject-matter of litigation in the partition suit in which receivers had been appointed, in consequence of different statutes coming into force like the temporary tenancy legislations and the Orissa Estates Abolition Act different consequences had arisen and the learned Subordinate Judge should at least have applied his mind to find out the incidence of these statutes on the disputed properties and should have further examined as to whether the alienor Damodar Sahu had any personal interest in these properties which could be duly conveyed under the various sale deeds. To support his contention he makes reference to some comments in Woodroffe's Tagore Law Lecture on the law Relating to Receivers. He also seeks to place reliance on an observation of their Lordships of the Supreme Court in AIR 1958 SC 725, Kanhaiyalal v. Dr. D. R. Banaji.

5. The contentions raised by Mr. Mohanty, however, cannot be sustained in the facts' of the present case. Admittedly the property was in custodia legis at the material point of time. Damodar may have been a party with some interest in the dis-puted property, but qua receiver he had no right to alienate the properly without the leave of the court. It is well known that a receiver holds property as an officer of the court for the ultimate successful party |in a litigation. The position of a party receiver is not different in law. Ahmad, J. |in AIR 1959 Pat 582, Jamilur Rahaman v. Laxmi Narayan examined a case of this type and held,

'In law it is well established that in certain circumstances in matters like this the Court may resort to summary proceeding and award relief both for or against a third person who is not a party to the suit. This is based on the principle that once a courtis in possession of a property in custodia legis through a Receiver, it is the duty of the Court to see that the property is kept intact and secure in the interests of those for whom the Court holds it.

Necessarily, therefore, if a third person comes to deal with that property on the basis of a transaction entered into between him and the Court, either directly or through the Receiver, he, by implication, surrenders himself to the Court so far as the transaction relating to the property is concerned. ......Therefore, to that extent, it cannotbe said that the Court had no jurisdiction to deal with the relief that was brought to its notice in that connection, though at the instance of the third party purchaser.'

On the aforesaid analysis I am not prepared to accept the contentions of Mr. Mohanty. The impugned order is bound to be sustained. The appeal fails and is dismissed. The receiver would be entitled to his costs of this Court and of the Court below.


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