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Sheolal S/O Shri Binjharam Vs. Bhagirath S/O Shri Laluram Jat S/O Jogiwala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Execution First Appeal No. 20 of 1974
Judge
Reported in1985WLN(UC)23
AppellantSheolal S/O Shri Binjharam
RespondentBhagirath S/O Shri Laluram Jat S/O Jogiwala
Cases Referred(Bhagirath v. Sheolal
Excerpt:
.....208 & 212 and civil procedure code--section 51 -appointment of receiver--opportunity given to decree-holder to satisfy executing court and give particulars of and crop to be harvested--receiver to be appointed for particular period and judgment debtor not to be left without any crop;the decree holder should be allowed an opportunity to satisfy and give particulars of the particular land and crop to be harvested on it which he wants to be taken by the receiver. thereafter, the court of execution should direct the appointment of receiver for a particular period which can be repeated till the decretal amount is realised. it would be, of course, open to the executing court to satisfy, what share of the crop is to be attached in order to assure that the judgment-debtor is not left..........to civil jail.2. briefly stated facts giving rise to this appeal are that, the appellant-decree holder obtained & money decree with costs, for rs. 15,150/-, and interest (pendente lite & future) @ 6% p.a. on the principal amount, in july, 1971. the appellant filed execution application for recovery of rs. 18,892/-, and interest, seeking execution by two modes, viz , arrest, and detention of the respondent in civil prison, and by appointment of receiver on the land belonging to the judgment-debtor-respondent, so that the income from the said land can be paid to the decree-holder. the decree-holder produced documentary evidence as well as oral evidence. the judgment-debtor examined himself in rebuttal. during the course of the proceedings the trial court, i e. additional district.....
Judgment:

G.M. Lodha, J.

1. This is an execution appeal of the decree holder against the order rejecting the prayer for appointment of a Receiver and sending the judgement-debtor to civil jail.

2. Briefly stated facts giving rise to this appeal are that, the appellant-decree holder obtained & money decree with costs, for Rs. 15,150/-, and interest (pendente lite & future) @ 6% p.a. on the principal amount, in July, 1971. The appellant filed execution application for recovery of Rs. 18,892/-, and interest, seeking execution by two modes, viz , arrest, and detention of the respondent in civil prison, and by appointment of receiver on the land belonging to the judgment-debtor-respondent, so that the income from the said land can be paid to the decree-holder. The decree-holder produced documentary evidence as well as oral evidence. The judgment-debtor examined himself in rebuttal. During the course of the proceedings the trial court, i e. Additional District Judge, ordered to issue warrant for the arrest and detention of the judgment debtor. Against this order of the trial court, a stay order in S.B Civil 1st Appeal No. 85 of 1671 (Bhagirath v. Sheolal) was obtained from this court on 20th December, 1971, to the effect that, 'if the appellant furnishes security for the payment of decretal amount, in the event of the dismissal of his appeal he may not be sent to civil prison. The decree-holder will be free to execute the decree by attachment of other property of judgment-debtor if any'. The appellant submitted that the judgment debtor failed to comply with the aforesaid stay order, and that, inspite of his failure to furnish security of the decretal amount, the judgment debtor was not sent to civil prison, nor his properties were attached. ,

3. The decree holder made an application for appointment of receiver on 23rd October, 1973, over the specified properties of judgment-debtor. The application was contested by the judgment-debtor.

4. After hearing the parties, the Additional District Judge, Sri Ganganagar, on 12th August, 1974 dismissed the applications filed by the appellant, holding that the decree holder has failed to satisfy the existence of any of the circumstances mentioned in Sub-clause (b) of proviso to Section 51, Code of Civil Procedure, and, therefore, commitment of the judgment-debtor to civil prison would not be legal and proper; and that, it would be neither just nor convenient to appoint a 'receiver' for agricultural land.

5. Shri Rajendra Mehta, the learned Advocate for the appellant be-fore this court has challenged the findings of (he Executing Court, and argued that the Executing Court committed serious error in not appointing the Receiver Shri Mehta referred to Section 212 read with Section 208 of the Rajasthan Tenancy Act, by which Code of Civil Procedure is made applicable in the matters of tenancy cases.

6. Undoubtedly, the execution is being sought against the judgment-debtor who claims to be agriculturist. The Executing Court has refused to appoint a 'Receiver' for realisation of the money from the crop on the ground that since it is agricultural land, and the judgment debtor has got only 12 bighas, of land which is hardly sufficient to maintain the judgment debtor and his family and that, the details of 23 bighas of land have not been given.

7. According to the Executing Court, in the second application dated the 23rd October, 1973, the decree holder has prayed for the appointment of receiver for 23 bighas of land but, the number of Murabbas and killas which have been mentioned in it relates to the land out of which the judgment debtor is entitled to 12 bighas of land only. Since the decree holder has not clarified which 12 bighas of land, he wanted to refer, the 'Receiver' cannot be appointed, according to the Executing Court.

8. The second reason given is that, it would not be just and proper to appoint the Receiver as the produce would be hardly sufficient for the maintenance of the judgment debtor and his family, and that, nothing will be left for the satisfaction of the decree. It was then mentioned that since the property is exempted from attachment the Receiver cannot be appointed. ;

9. Having heard the submissions of Shri Mehta, I am not impressed by that, so far as the judgment to the finding rejecting the prayer for sending the judgment debtor to civil prison is concerned. However, I feel that the rejection of the application for appointment of a 'receiver' for a particular crop has not been dealt with properly.

10. The decree-holder has got a decree of Rs. 18,892/-. Even assuming (hat the judgment-debtor has got 10 bighas of land in village Jogiwala of Sri Ganganagar district, it was the duty of the Executing Court to get it satisfied from the decree-holder, and then direct a particular crop to be attached and sold.

11. The consideration that the family of the judgment-debtor would starve in the absence of that crop, could have been weighed, and considered by directing the attachment only of 3/4th crop or 1/2 of the crop every year.

12. It should be kept in view that the judgment debtor is not being sent to civil jail for realisation of the money even though the decree holder has deposed that she annual income from the land of the judgment-debtor is about Rs. 16,000/-, and this statement is corroborated by Liladhar. Even the judgment debtor has admitted in cross-examination that, he cultivated 20 bighas of land in Dabli and shared the produce; and he further admitted that in other 25 bighas of land which is ancestral property, he has got his share as such.

13. The judgment debtor also stated that his father is having 96 bighas of land, out of it his share is to 1/8th as they are four brother and three sisters. It is clear from the above that he would have normally l/5th share, and, therefore, he would get about 25 bighas of land.

14. In view of the above, though I do not intend to disturb the finding regarding rejection of the prayer of sending him to civil prison, I feel that a question of appointment of Receiver' should be re-examined by the Executing Court. Shri Mehta submitted that his prayer is not to appoint 'Receiver' for the agricultural land as such as a whole but, only for a particular crop.

15. If that is so, he should satisfy before the Executing Court furnishing the exact particulars of land of crop and period which he wants to get harvested by the Receiver. In case the crop has been harvested then he must further satisfy which particular crop is to be taken by the Receiver.

16. I would, therefore, remand the execution appeal to the Court of Execution with the direction that, the decree holder should be allowed an opportunity to satisfy and give particulars of the particular land and crop to be harvested on it which he wants to be taken by the Receiver. Thereafter, the Court of Execution should direct the appointment of Receiver for a particular period which can be repeated till the decretal amount is realised. It would be, of course, open to the Executing Court to satisfy, what share of crop is to be attached in order to assure that the judgment debtor is not left without any crop as the Executing Court, itself, ordered to ensure that the judgment debtor would not starve,

17. The Executing Court can very well after taking into consideration the relevant material about the expected income from the crop, direct whether the half of the decretal amount would be got by the Receiver for satisfaction of the decree or 3/4th of it.

18. As soon as the record is received by the Executing Court it would issue notice to both or the parties, and treating the execution application as pending, would start proceedings for realisation afresh, as directed above.

19. In the result, this appeal is partly allowed, and the judgment dt. 12-8-74 of the Executing Court is set aside as indicated above and the Execution application is sent back to the Additional District Judge, Sri Ganga Nagar for proceeding according to law and as per the directions given above.

20. The parties would bear their own costs.


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