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G. Narappa Naidu Vs. Thummalur Chinna Asethu Reddi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad396; (1942)1MLJ217a
AppellantG. Narappa Naidu
RespondentThummalur Chinna Asethu Reddi and anr.
Cases ReferredRajindra Narain Singh v. Sundara Bibi
Excerpt:
- - sundara bibi clearly distinguish between cases in which execution has to be carried out by attachment and sale and those cases in which execution has to be carried out by the appointment of a receiver......to get a decree on the mortgage. assuming that this is a contention open to the defendant in the mortgage suit, it seems to me that it is a contention which is devoid of substance. it is based on certain observations in palikandy mammad v. krishnan nair : (1916)30mlj361 , where it is stated that the- court cannot appoint a receiver except where it has seisin of the property either by a suit being pending or by proceedings in execution of a decree made in a suit being pending and attachment having been made. these observations seem to be based on the wording of the old c. p. c, although they were made in a case arising out of an execution of 1912. 'the present c.p.c., does not appear to contemplate an attachment as a necessary preliminary to the appointment of a receiver in execution.....
Judgment:

Wadsworth, J.

1. In both these appeals the appellant is the purchaser from a mortgagor and the suit was filed by a receiver appointed to collect the mortgage debt and apply the proceeds towards the discharge of the debt due by the mortgagee in that suit. The only contention of law urged in these appeals is that the appointment of the receiver was invalid without the prior attachment of the mortgage debt and that therefore the receiver was not entitled to get a decree on the mortgage. Assuming that this is a contention open to the defendant in the mortgage suit, it seems to me that it is a contention which is devoid of substance. It is based on certain observations in Palikandy Mammad v. Krishnan Nair : (1916)30MLJ361 , where it is stated that the- Court cannot appoint a receiver except where it has seisin of the property either by a suit being pending or by proceedings in execution of a decree made in a suit being pending and attachment having been made. These observations seem to be based on the wording of the old C. P. C, although they were made in a case arising out of an execution of 1912. 'The present C.P.C., does not appear to contemplate an attachment as a necessary preliminary to the appointment of a receiver in execution and the Privy Council in Rajindra Narain Singh v. Sundara Bibi clearly distinguish between cases in which execution has to be carried out by attachment and sale and those cases in which execution has to be carried out by the appointment of a receiver. After all there is no practical reason to attach property before appointing a receiver. An appointment of a receiver is in itself a form of attachment. Instead of signifying the Court's custody by merely affixing process to the property or serving it on the owner, an officer of the Court is sent to take charge of that property, realise the income and utilise it under the directions of the Court. I am clearly of opinion that an appointment of a receiver in execution is not bad merely because there has been no prior attachment.

2. The appellant has in each of these cases filed a petition under Madras Act IV of 1938 praying that any decree to be passed against him may be scaled down in accordance with the provisions of that Act. These two petitions will be enquired into by the District Munsif of Prodattur and the decree in these appeals will if necessary be modified in accordance with the decision on these petitions. Subject to these modifications the two appeals are dismissed with costs, one set.


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