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Ram Niwas Kumaria Pvt. Ltd. Vs. Prem Prakash Arya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 494 of 1984
Judge
Reported inAIR1984Cal211
ActsCode of Civil Procedure (CPC) , 1908 - Order 38, Rule 11
AppellantRam Niwas Kumaria Pvt. Ltd.
RespondentPrem Prakash Arya
Cases ReferredSee Balbhaddar v. Balla
Excerpt:
- .....as prayed for in this application should be passed as the same would continue even after the decree was passed in the suit he submitted further that the receiver already appointed does not stand automatically discharged upon a decree being passed. the receiver should be directed to continue till the decree was fully satisfied: in support of his contentions learned counsel cited the following decisions :--(a) hiralal patni v. leen kaian sethiya reported in : [1962]1scr868 . in this case the supreme court laid down the law as follows :-- (a) if a receiver is appointed in a suit until judgment, the appointment is brought to end by the judgment in the action. (b) if a receiver is appointed in a suit,without his tenure being expressly defined,he will continue as a receiver till his.....
Judgment:

Dipak Kumar Sen, J.

1. On the 10th Aug., 1983, Ram Niwas Kumarja Pvt. Ltd., the plaintiff, instituted this suit against Prem Prakash Arya, the defendant, claiming, inter alia, a decree for Rs. 1,02,077.50 p. with further interest.

2. The plaintiff alleges that it had lent and advanced to the defendant Rs. 50,000/-on the 7th Nov., 1980 and Rs. 45,000/- on the 27th June 1981. The amounts were repayable on demand with interest payable every month at the rate of 1 % per month, which was enhanced to 14% per month in Nov., 1982.

3. The plaintiff alleges further that it demanded repayment of the said loans with interest which the defendant failed and neglected to pay.

4. This application has been made in this suit by the plaintiff on a notice dated the 11th Aug., 1983 for the following orders:--

(a) A direction on the defendant to furnish security for Rs. 1,02,077.50 p.

(b) In default, the outstanding, dues payable to the defendant by Jessep & Co. P. Ltd.; Chandras Chemicals Enterprises Ltd.; Rehabilitation Industrial Corporation and Calcutta Port Trust be attached before judgment;

(c) Injunction restraining the defendant from realising or receiving the said outstanding dues.

(d) Appointment of a receiver to collect the said outstanding dues and to keep or hold the money realised in a fixed deposit account.

(e) A receiver over the defendant's interest to M/s. Besf Transport Corporation with power to collect all properties and profits belonging or payable to the defendant by the said firm.

5. The plaintiff alleges that the defendant b in involved circumstances and is selling or disposing of or transferring his assets and secreting the proceeds thereof with the object of defrauding his creditors, including the plaintiff. It is alleged that the defendant is his business has borrowed over Rs. 3 lakhs from different persons and concerns.

6. Best Transport Corporation, where the defendant is a partner having 45% share, it is alleged has also borrowed about Rs. 3 lakhs from various persons and concents associated with the plaintiff. The defendant intends also to wind up the business of the laid firm.

7. It is alleged that the object of the defendant is to obstruct or delay the execution of the decree which is likely to be passed in this suit.

8. An ad interim order was passed in this application on the 11th August, 1983 restraining the defendant from realising or receiving his outstanding dues from Jessop and Co. P. Ltd.; the Chandras Chemicals Enterprises Pvt. Ltd.; the Rehabilitation Indus-trial Corporation and the Calcutta Port Trust. Thereafter a receiver was appointed, who has collected from Jessop and Co. Ltd. a sum of Rs. 97,000/- due to the defendant and is holding the same.

9. The defendant has affirmed an affidavit on the 1st Sept., 1983 which has beenfiled in opposition to the petition. The defendant has admitted the loans but contendsthat the plaintiff was not entitled to demandrepayment if the stipulated interest at therate of 1% was paid regularly. It is deniedthat interest was agreed to be paid at anenhanced rate: The defendant contends thatthe plaintiff is not entitled to a Receiver ina money suit.

10. It is a matter of record that the plain-tiffs had made another application in this suit under Chapter XIIIA of the Original Side Rules for a summary judgment against the defendant. On the 1st Feb., 1984 a decree for the full amount claimed has been passed against the defendant in the said application during the pendency of the present application. Under the decree the defendant has been allowed to pay the decretal amount in instalments.

11. It was submitted by learned Counsel for the defendant at the hearing that after the passing of the decree the plaintiff is not entitled to proceed further in this application and no order should be passed herein.

12. Learned Counsel for the plaintiff contended to the contrary and submitted that an order of attachment before judgment as prayed for in this application should be passed as the same would continue even after the decree was passed in the suit He submitted further that the receiver already appointed does not stand automatically discharged upon a decree being passed. The receiver should be directed to continue till the decree was fully satisfied: In support of his contentions learned Counsel cited the following decisions :--

(a) Hiralal Patni v. Leen Kaian Sethiya reported in : [1962]1SCR868 . In this case the Supreme Court laid down the law as follows :--

(a) If a receiver is appointed in a suit until judgment, the appointment is brought to end by the judgment in the action.

(b) If a receiver is appointed in a suit,without his tenure being expressly defined,he will continue as a receiver till his discharge.

(c) The Court had ample power to continue a receiver even after a final decree if the exigency of the case so required.

(b) Kishore Singh v. Udhyog Mandir, reported in . In this case a learned Judge of the Rajasthan High Court, following decisions of this Court as well as those of the Allahabad High Court held that where an attachment before judgment was made the same would continue even after a decree was passed in the suit, under Order 38, Rule 11 of the Civil P. C. and no fresh order of attachment was necessary.

(c) Sri Krishna Textile v. J. R. Exports (India) reported in : AIR1977Mad339 . In this case a Division Bench of the Madras High Court held that if an order of attachment before judgment was passed in a suit the same would net cease to be effective ifa decree was passed in the suit permitting the judgment-debtor to pay the decretal amount in instalments. The order of attachment would survive till it was set aside in accordance with law.

13. The previsions of Rule 11 of Order XXXVIII of the Civil P. C may be noted. The said Rule is as follows:--

'Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a reattachment of the property.'

14. It is to be kept in view that no order of attachment before judgment nor any final order has been passed in the present application. There is an ad interim order of injunction restraining the defendant from realising or receiving the outstanding amounts payable to him by specified persons or concerns. By another ad interim order a Receiver has been appointed. These orders, in my view, are meant to continue till the disposal of the application by a final older.

15. A temporary, or interlocutory injunction is normally granted for a specified time or until further orders of the Court. If the injunction is not vacated during the suit it terminates with the disposal of the suit. See Balbhaddar v. Balla reported in AIR 1930 All 387 (2).

16. The question that remains is whether after a suit has been decreed the plaintiff is entitled to proceed with an interlocutory application for interim reliefs in the suit In my view, the plaintiff is not entitled to do so. Once the plaintiff obtains, final relief in his action it is not, open to him thereafter to ask for any further interim relief in the action inasmuch as, his action comes to ah end and merges with the decree.

17. It was open to the plaintiff to ask forsuitable orders under Order 21 of the CivilP. C. when the decree was passed in thissuit, which the plaintiff apparently failed todo.

18. If an order for attachment before judgment had been passed before the decree, no doubt the same would continue even after the decree. But a decree having been passed in this suit the plaintiff is not entitled now to an order of attachment before judgment nor for a final order for appointment and continuation of the receiver in this application.

19. For the reasons as above, there will be no order on this application. All interm orders are vacated. The Receiver is discharged and he is directed to make over the fund in his hands to the defendant. The Receiver and the parties to act on a signed copy of the minutes of this order on the usual undertaking.

20. I make it clear that this order is made without prejudice to the plaintiff's right to initiate suitable proceedings in execution as it may be advised.


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