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Kesobati Vs. Mohan Chandra Mandal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal1010
AppellantKesobati
RespondentMohan Chandra Mandal
Cases ReferredUdoy Kumari Ghatwalin v. Hari Ram Shaha
Excerpt:
ghatwali tenure - attachment--receiver, appointment of-execution of decree. - .....the argument on behalf of the appellant addressed to us has been directed mainly to show that a ghatwali estate not liable to attachment and sale in execution of a decree and we have been referred to the cases of nilmoni singh deo v. bakranath singh (1882) i.l.r. 9 calc. 187 ram chunder singh v. madho kumari (1885) i.l.r. 12 calc. 484, 490 kustoora kumaree v. binoderam sein (1865) 4 w.r. mis. 5 binoderam v. the deputy commissioner of sonthal pergunnahs (1867) 7 w.r. 178 binoderam sein v. the deputy commissioner of sonthal pergunnahs (1866) 6 w.r. 129 and udoy kumari ghatwalin v. hari ram shaha (1901) i.l.r. 28 calc. 483.6. on a consideration of these cases we are unable 1o say that they go so far as to lay down that the surplus rents and profits of ghatwali tenures cannot be attached.....
Judgment:

Coxe and Imam, JJ.

1. This is an appeal against an order of the Subordinate Judge of Dumka allowing an attachment of the estate of the judgmentp-debtor and appointing a Receiver.

2. By a compromise between the parties in Appeal from Origional Decree No. 467 of 1907, it was decreed that the decetal amount was to be paid toe the decree holder in three instalments and failure to pay any two consecutive instalments was to entitle the plaintiff decree-holder to ralize the entire amount due at the time of such default by executing the entire decree, it being further stated in the petition of compromise that the decretal amount was realizable form the estate of the late Raja Udit Narain Sing (the deceased husband of the judgment-debtor) as well as from the defendatnt judgment-debtor personally.

3. There having been default in the payment of two consecutive instalments, the decree-holder applied for execution of his entire decree and prayed for realization of the decretal amount by the appointment of a Receiver for 13 Taluks mentioned in the Schedule to the application. This application states as a ground for the realization of the decretal amount by means of a Receiver the fact that in another suit the 13 Taluks had been declared ghatwali. On this application the judgment-debtor was called upon to show cause why her estate should not be attached and placed under a Receiver. She appeared and applied for two weeks' time (which application was refused), and the whole of her estate, with some exceptions specified in the order, was attached and the Deputy Commissioner was appointed Receiver, the Court issuing directions to the mustajirs and raiyats not to make payments to anybody other than the Deputy Commissioner or his duly constituted agents. The judgment-debtor was forbidden to make any collections during the continuance of the attachment.

4. Though the order relates to two matters, viz., attachment and the appointment of a Receiver, this appeal is in respect of the latter only. A preliminary objection that no appeal lay was raised on behalf of the respondent, but as it was not pressed we need not deal with it at any length. It will be sufficient for us to say that in our view an appeal does lie against the order of the Subordinate Judge.

5. Though in the grounds of appeal no exception has been taken to the attachment, the argument on behalf of the appellant addressed to us has been directed mainly to show that a ghatwali estate not liable to attachment and sale in execution of a decree and we have been referred to the cases of Nilmoni Singh Deo v. Bakranath Singh (1882) I.L.R. 9 Calc. 187 Ram Chunder Singh v. Madho Kumari (1885) I.L.R. 12 Calc. 484, 490 Kustoora Kumaree v. Binoderam Sein (1865) 4 W.R. Mis. 5 Binoderam v. The Deputy Commissioner of Sonthal Pergunnahs (1867) 7 W.R. 178 Binoderam Sein v. The Deputy Commissioner of Sonthal Pergunnahs (1866) 6 W.R. 129 and Udoy Kumari Ghatwalin v. Hari Ram Shaha (1901) I.L.R. 28 Calc. 483.

6. On a consideration of these cases we are unable 1o say that they go so far as to lay down that the surplus rents and profits of ghatwali tenures cannot be attached in the lifetime of the ghatwal, though they do lay down that the estate itself cannot be attached. The case of Kustoora Koomaree v. Binoderam Sain (1865)4 W.R. Mis. 5 is clear authority for the proposition that the surplus-proceeds of a ghatwali tenure collected during the lifetime of the judgment-debtor are his personal property and thus liable to be taken in. execution. In Surajmal Marwari v. Kristo Pershad Singh (1906) 10 C.W.N. cclx it was held that the income of a ghatwali property was not itself ghatwali property, and as such was liable to be sold. The appointment of a Receiver in this case is in entire accord with the view taken in the case of Udoy Kumari Ghatwalin v. Hari Ram. Shaha (1901) I.L.R. 28 Calc. 483 which like Rajkeshwar Deo v. Bunsidhur Marwari (1896) I.L.R. 23 Calc. 873 came from the Sonthal Pergunnahs. It may be open to question whether a Receiver ought to be appointed to collect rents and profits that have not accrued at the time of the appointment, but we do not think that we ought in the present case to dissent from the decision in Udoy Kumari Ghatwalin v. Hari Ram Shaha (1901) I.L.R. 28 Calc. 483. For all that we know to the contrary, rents and profits may have accrued prior to the appointment. Had there been merely a prohibitory order issued to the ghatwal not to receive any rents and profits from the raiyats and also to the raiyats not to pay their rents to the ghatwal without the appointment of a Receiver, the order might have been open to question, but the appointment of a Receiver to receive the rents and profits seems to us an order sanctioned by authority. The order for attachment of the estate may be erroneous, but as the practical effect of the appointment of the Receiver is merely to ensure that the rents and profits are properly dealt with, we do not think it necessary to interfere. We, therefore, in the view we take, dismiss this appeal, but in the circumstances we do not allow costs.


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