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J.R. Vakharia and Sons. (P.) Ltd. Vs. Kantilal Tejaji Pa/H H of Fulchand Devchand - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR1069
AppellantJ.R. Vakharia and Sons. (P.) Ltd.
RespondentKantilal Tejaji Pa/H H of Fulchand Devchand
Cases ReferredWasif Ali Mirza Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd.
Excerpt:
- .....that the receiver should recover rent till the darkhast amount was realised.2. the judgment-debtor filed miscellanoues appeal no. 32 of 1964 against the order passed by the learned civil judge to appoint a receiver to collect the rents from tenants of the judgment-debtor. the learned district judge dismissed the appeal and confirmed the order passed by the learned civil judge. in this second appeal mr. r.m. vin, raised same contentions which were raised before the lower appellate court. mr. vin contended that the holder of power of attorney of the judgment-creditor had filed the darkhast in his own name and, therefore, the darkhast was not maintainable. the execution application exh. 1 is signed by the attorney kantilal tejaji as an attorney for fulchnd judgment-creditor......
Judgment:

S.N. Patel, J.

1. Second Appeal No. 90 of 1965 is filed against the judgment and decree in Miscellaneous Civil Appeal No. 32 of 1964 decided on 11th December 1964 by the learned District Judge, Broach. The respondent-judgment-creditor obtained a money-decree in Civil Suit No. 33 of 1961 against the appellant-judgment-debtor. The Judgment-creditor filed Regular Darkhast No. 24 of 1964 for execution of the aforesaid decree and prayed for appointing a receiver to collect rents of the properties of the judgment-debtor in possession of the tenants to satisfy the decree. The Darkhast was resisted by the judgment-debtor on several grounds. One of the objections of the judgment-debtor was that immovable properties in possession of tenants were not attached, rent from the tenants was possible future income of the immovable properties in possession of the tenants and, a receiver of possible future income of immovable properties not attached could not be appointed. A receiver could be appointed only in respect of a definite property. The learned Civil Judge overruled the objections of the judgment-debtor and appointed a receiver to collect rent from the tenants shown in the schedule attached with the Darkhast. The learned Civil Judge ordered that the receiver should recover rent till the Darkhast amount was realised.

2. The judgment-debtor filed Miscellanoues Appeal No. 32 of 1964 against the order passed by the learned Civil Judge to appoint a Receiver to collect the rents from tenants of the judgment-debtor. The learned District Judge dismissed the appeal and confirmed the order passed by the learned Civil Judge. In this second appeal Mr. R.M. Vin, raised same contentions which were raised before the lower appellate Court. Mr. Vin contended that the holder of power of attorney of the judgment-creditor had filed the Darkhast in his own name and, therefore, the Darkhast was not maintainable. The execution application Exh. 1 is signed by the attorney Kantilal Tejaji as an attorney for Fulchnd judgment-creditor. Obviously the Darkhast was filed on behalf of the judgment-creditor. Also the power of attorney is authorised under the document of power of attorney to file an application for execution. Therefore, there is no substance in this contention of the appellant.

3. Next Mr. Vin contended that Darkhast was filed against the Director of the Company named Jalbhai Jamshedji Vakharia and not against the judgment-debtor Company itself and, therefore, execution proceedings could not proceed against the Director of the Company. The learned District Judge has found the Darkhast was not filed against the Director of the Company but it was filed against the Company judgment-debtor. Mr. Vin has not-been able to show that the Darkhast was filed only against the Director and not against the Company-judgment-debtor. There is no substance in this contention of the appellant.

4. Mr. Vin then contended that a receiver cannot be appointed for releasing future mesne profits of any immovable property which was not attached. He submitted that a receiver could be appointed only in respect of a definite property. Mr. Vin relied upon A.I.R. 1936 Bombay 399 Harilal Chhotalal Shah and Anr. v. Chaturbhai Punjabhai and Ors. in support of his contention. In the aforesaid case the Division Bench of the Bombay High Court observed that a receiver of possible future income of property could not be appointed because such income was not by itself definite property of the judgment-debtor at the time of the receiver's appointment. Those observations were made while construing Section 1 of Bhagdari and Narwadari Act. Their Lordships construed Section 1 of the Bhagdari Act and held 'But we have to deal with the very precise language of Section 1. It seems to me that to appoint a receiver of the land would amount to seizure or attachment of the land, and that such appointment is therefore prohibited by the Act'. The observations in the aforesaid case are made in view of language of Section 1 of Bhagdari and Narvadari Act and are not applicable to the present case.

5. In Lal Rajindar Narain Singh alias Lallu Sahib v. Mt. Sundar Bibi a question arose as to the remedy of a judgment-creditor when the judgment-debtor had the right of maintenance only in the properties. Their Lordships observed: 'Their Lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that Section 60 of the Civil Procedure Code precludes an application for that purpose. The proper remedy lies, in a fitting case in the appointment of a receiver for realising the rents and profits of the property paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family, and applying the balance, if any, to the liquidation of the judgment- creditor's debt'.

6. In , Wasif Ali Mirza Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd. also it is laid-down that where attachment of the immovable property of the judgment-debtor is prohibited under any law, the Court has power to appoint a receiver of the rents and profits of the properties in execution of a decree because the judgment-debtor has a disposing power over the income. From the above authorities it is clear that a receiver could be appointed to realise future rent and profits from tenants in possession of immovable properties of a judgment-debtor in execution proceedings. Section 51(d) of the Civil Procedure Code reads as follows:

Section 51 Powers of Court to enforce execution. 'Subject to such conditions and limitations as may be prescribed the Court may, on the application of the decree holder, order execution of the decree

(a) ...

(b) ...

(c) ...

(d) by appointing a receiver; or

(e) ...

Under Section 51(d) of the Civil Procedure Code, a decree could be executed by appointing a receiver unless any limitations are prescribed. Mr. Vin has not been able to show that any limitations are prescribed, The lower appellate Court was right in holding that a receiver could be appointed to realise rent from tenants in possession of immovable properties of the judgment, debtor, under Section 51(d) of Civil Procedure Code.

In the result appeal fails and is dismissed with costs.


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