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Somasundaram Chettiar Vs. K.M. Parimala Kandar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad697; 157Ind.Cas.379
AppellantSomasundaram Chettiar
RespondentK.M. Parimala Kandar and ors.
Cases ReferredFraser & Ross v. Krishnaswamy Ayyar
Excerpt:
- .....is appointed by another court over the properties which are about to be sold in execution, if the sale is allowed to proceed in the executing court then there is a conflict of orders, namely, the order appointing the receiver over the property and vesting the property in him, and the other order, ordering the sale of the very property which the other court has appointed a receiver over. there is also another objection, namely if a decree-holder is allowed to execute his decree and go on with a sale notwithstanding the fact that another court has appointed a receiver over the same properties, it really amounts to a contempt of the order of the court which appointed the receiver. but it is quite obvious that, where there are two different courts, there is an obvious conflict of orders,.....
Judgment:

Beasley, C.J.

1. These were application's in the lower Court by the judgment-debtor and by the receiver over the properties sold in execution to have the sale set aside upon various grounds. We are here only concerned with two of them which are technical objections. The sale of the properties had been ordered by the Sub-Court, Salem. The same Court in another suit appointed the receiver over the properties which were being brought to sale in pursuance of the orders of the Court. After his appointment the receiver put in an application to the same Court for permission to pay Rs. 1,000 towards the decree debt.

2. In this application he described himself as the receiver and he asked that the sale might be stayed for the purpose of enabling him to make that payment towards the decree debt. That application was granted and, we are told that there was subsequently an adjournment of the sale for one week. The sale then took place and, after it, the applications, the orders on which are the subject of these two applications, were made by the judgment-debtor and the receiver to have the sale set aside upon various grounds. The grounds with which we are concerned are that previous leave of the Court for the sale had not been obtained as it should have been in view of the fact that a receiver had been appointed and, secondly, that the receiver was not made a party to the sale proceedings. Upon the first point, the learned Subordinate Judge held that that objection was a good one and that, as execution proceedings went on without the leave of the Court which appointed the receiver having been previously given, the sale was invalid and. he therefore set it aside. It was not necessary under these circumstances to go into the other objection taken, namely, that the receiver ought to have been made a party to the execution proceedings.

3. We however will deal with both the objections here. In support of his order the learned Subordinate Judge referred to Fraser & Ross v. Krishnaswamy Ayyar 1923 Mad. 144 and it was referred to here also. In, that case it was held that a mortgage decree-holder is bound to apply to the Court appointing a receiver of the mortgaged properties in another suit, for leave to execute his decree, and cannot proceed to sell the mortgaged property in execution of his decree without such leave. That was a decision of Devadoss, J. The distinction between that case and the present case is that the receiver had been appointed by a Court other than the Court in which execution proceedings were going on, and it is quite clear that the reason for that decision was this : that, where a sale is proceeding in one Court in execution and a receiver is appointed by another Court over the properties which are about to be sold in execution, if the sale is allowed to proceed in the executing Court then there is a conflict of orders, namely, the order appointing the receiver over the property and vesting the property in him, and the other order, ordering the sale of the very property which the other Court has appointed a receiver over. There is also another objection, namely if a decree-holder is allowed to execute his decree and go on with a sale notwithstanding the fact that another Court has appointed a receiver over the same properties, it really amounts to a contempt of the order of the Court which appointed the receiver. But it is quite obvious that, where there are two different Courts, there is an obvious conflict of orders, between two Courts. Here the Courts were the same.

4. The same Court ordered the sale in execution, and appointed the receiver over the same properties which it had ordered to be sold in execution. That need not necessarily be a distinction which makes a difference. But under the circumstances of the present case it does, and I am clearly of the opinion that the learned Subordinate Judge's order was wrong for the reason that the executing Court was fully aware of the appointment of the receiver. The receiver himself put in an application to the executing Court making it clear to the executing Court that he was a receiver of the properties about to be sold in execution. The executing Court knew that he was the receiver and that he was asking for an adjournment of the sale for the purpose of paving Rs. 1,000 towards the decree amount. Knowing him to be the receiver, having ordered the sale and having allowed the sale to go on subject of course only to a short adjournment, it cannot be said that the executing Court was unaware of the appointment of the receiver and in ignorance allowed the sale to go on. With full knowledge of the facts the executing Court allowed the sale to go on. It was thus quite unnecessary for any formal application to be made to that Court for leave for the execution to proceed. Nor can the receiver be heard to say under these circumstances that he should have been joined as a party to the execution proceedings. He was fully aware of the sale.

5. All he asked for was an adjournment for a short time for a certain purpose. He never objected to the sale going on without his being made a party and never asked to be made a party, and for these reasons, the second objection raised here must fail also. The result is that the sale should not have been set aside upon these grounds. The orders of the lower Court are therefore set aside. There are however other objections raised in the petitions of the receiver and the judgment-debtor which have not been gone into in the lower Court and the cases must therefore be remanded to the lower Court in order that those further matters may be disposed of. In view of the fact that the result may be that the sale is set aside on the other grounds the costs of these appeals will abide the result of the inquiry into the other matters. The appeals are allowed.

Cornish, J.

6. I agree.


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