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Jogendra Nath GossaIn and anr. Vs. Debendra Nath Gossain - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal127
AppellantJogendra Nath GossaIn and anr.
RespondentDebendra Nath Gossain
Cases ReferredHem Chunder Chunder v. Prankristo Chunder
Excerpt:
receiver - mortgage decree--execution of mortgage decree by sale of properties in the possession of the receiver. - .....suit in this court.4. this is not a case where the judgment-creditor is proceeding to execute his decree by attachment. this court does not permit and will not recognise attachment of the properties in the hands of its receiver, under process issued without sanction or leave, by inferior courts, the reason being that a proceeding by way of attachment is an interference with the possession of the receiver. but as the element of interference with the possession of the receiver is absent from the present case there is no reason for restraining the sale. the case of hem chunder chunder v. prankristo chunder (1876) i.l.r., 1 cal., 403, is distinguishable, inasmuch as the judgment-creditor in that case, if he had proceeded to execute his decree in the mofussil court, could have done so only.....
Judgment:

Sale, J.

1. This is a rule calling on the judgment-creditor, who has obtained a decree on his mortgage under the Transfer of Property Act in the Alipore Court, to show cause why he should not be restrained from proceeding to a sale of certain properties which are included in his mortgage, but which are now in the hands of the Receiver of this Court.

2. The suit in which this application is made, and in which the Receiver was appointed, is a partition suit in which a decree was made declaring the rights of the parties and directing the usual accounts and enquiries.

3. It appears that pending the partition proceedings and after the appointment of a Receiver two of the co-sharers mortgaged their interest in the un divided properties to the judgment-creditor. Some of the mortgaged properties being within the jurisdiction of the Alipore Court the mortgagee instituted his suit in that Court, and seeks to bring to sale the particular properties mentioned in the rule, some of which are situated in Calcutta. The judgment-debtors, after obtaining several postponements of the sale for the purpose of paying off the judgment-creditor, now apply to restrain the mortgagee from proceeding to a sale on the ground that to sell the mortgaged properties without the leave or sanction of this Court would amount to contempt of Court. But the sale of the properties under the provisions of the Transfer of Property Act can have no other' effect, so far as the possession or control of the Receiver is concerned, than a private sale by the mortgagors themselves. To obtain the benefits of his purchase and the rights incident thereto, the purchaser must seek the intervention of this Court, and he will be bound by all the proceedings in the partition suit in this Court.

4. This is not a case where the judgment-creditor is proceeding to execute his decree by attachment. This Court does not permit and will not recognise attachment of the properties in the hands of its Receiver, under process issued without sanction or leave, by inferior Courts, the reason being that a proceeding by way of attachment is an interference with the possession of the Receiver. But as the element of interference with the possession of the Receiver is absent from the present case there is no reason for restraining the sale. The case of Hem Chunder Chunder v. Prankristo Chunder (1876) I.L.R., 1 Cal., 403, is distinguishable, inasmuch as the judgment-creditor in that case, if he had proceeded to execute his decree in the Mofussil Court, could have done so only by way of attachment and sale.

5. Under the Transfer of Property Act no attachment is necessary,'and the reason for the course adopted in the former case does not now exist.

6. The result is that the rule must be discharged with costs, and the judgment-debtors must in pursuance of their undertaking also pay all costs occasioned by the interim stay of the sale.


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