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Mohitosh Dutta Vs. Rai Satish Chandra Chaudhuri and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal203
AppellantMohitosh Dutta
RespondentRai Satish Chandra Chaudhuri and anr.
Cases ReferredMiller v. Lukhi Mani Debi
Excerpt:
- .....the code; but where ho comes to the executing court for the purpose of saying that as the judgment-debtor's property now belongs to the receiver the court cannot sell for the judgment-debtor's debt that which is the property of another person because it has vested in the receiver for the benefit of the creditors, then, for that- purpose, the receiver is not, in my judgment a representative of the judgment-debtor and the cases which i have referred to are, in my judgment, correct in that respect. the receiver in such a case, if ho is not acting under section 52 of the act, but acting under the usual provisions of the civil procedure code is really a third party making a claim.4. he is saying that while there is no objection to the judgment-debtor's property being sold for the.....
Judgment:

Rankin, C.J.

1. This case raises some interesting questions. It is a case where the judgment-debtor had suffered a money decree and it seems that in September 1927 an application to adjudicate him an insolvent under the Provincial Insolvency Act was presented to the appropriate Court. Before any order was made, the decree-holder on 13th February 1928 applied for execution. On l2th April sale of certain property was held and on a day in May that sale was confirmed. On 8th May the insolvency Court appointed an interim receiver, that is to say, a receiver in whom nothing vests but who has the powers of a receiver under the Civil Procedure Code. On 10th May this interim receiver applied to set aside the sale. He appears to have made a case under Order 21, Rule 90, Civil P. C, but he also made a case to the effect that, as there were proceedings in insolvency, the sale should be set aside. I pause here to observe that he was too late on any-possible view to take advantage of Section 52, Provincial Insolvency Act, which is applicable only where notice is given to the Court in time and before the sale. On 26th June an order of adjudication was made and the interim Receiver was appointed receiver in the full sense of the word and the insolvent's property vested in him under the statute for the benefit of the creditors. Originally, the application of the interim receiver made on 10th May was allowed and the sale was set aside on 25th July. In September, the decree-holder applied for a review of this order and the learned Munsif set aside the order and restored his previous order confirming the sale. From this, there was an appeal by the receiver to the District Judge and there was a certain amount of objection to the effect that no appeal lay against an order granting a review to which the answer which prima facie seems to me to be a good one was that it was not an appeal against the order granting a review but against the order made upon the review, namely, confirming the sale setting aside the previous order. However the learned District Judge also dismissed the appeal on merits. Prom that order the present appeal is filed. As a matter of fact, leave has been given under Section 5, Lira. Act, extending the time for an appeal in view of what was said by the Division Bench before whom an application under Section 115, Civil P. C, was made. We have however to consider whether the order of the District Judge refusing to interfere with the order discharging the order sotting aside the sale is correct.

2. Now the first question which arises is whether or not there is any second appeal. In so far as the receiver's application was an application by a person interested under Rule 90, Order 21, it is clear that there is no second appeal. We have therefore to see whether the receiver's application to set aside the sale can be looked at in any other view.

3. A good deal has been said upon the question whether the receiver under the Provincial Insolvency Act is a representative of the judgment-debtor for the purposes of Section 47, Civil P.C. There is a good deal of authority in cases exactly like this to the effect that he is not a representative and the matter has been dealt with in the cases of Kashi Prasad v. Miller [1885] 7 All. 752; C.E. Grey Official Assignee v. Hazari Lal [1908] 30 All. 486 Sardarmal Jagonath v. Aran Vayal Sabhapatty [1897] 21 Bom. 205; Chandmull v. Ranee Soondary Dasi [1895] 22 Cal. 259; Miller v. Lukhi Moni Debi [1901] 28 Cal. 419; Frederick Peacock v. Madan Gopal [1902] 29 Cal. 428 and the Official Assignee, Madras v. Aiyu Dikshithar : AIR1925Mad688 . It appears to me that any general statement to the effect that a receiver is or is not a representative for the purposes of Section 47 of the Code is necessarily misleading. It all depends on the purpose and nature of the application made by the receiver whether he is a representative of the judgment-debtor or not. For some purposes, he would be entitled as representing the judgment-debtor to litigate matters under Section 47 of the Code; but where ho comes to the executing Court for the purpose of saying that as the judgment-debtor's property now belongs to the receiver the Court cannot sell for the judgment-debtor's debt that which is the property of another person because it has vested in the receiver for the benefit of the creditors, then, for that- purpose, the receiver is not, in my judgment a representative of the judgment-debtor and the cases which I have referred to are, in my judgment, correct in that respect. The receiver in such a case, if ho is not acting under Section 52 of the Act, but acting under the usual provisions of the Civil Procedure Code is really a third party making a claim.

4. He is saying that while there is no objection to the judgment-debtor's property being sold for the judgment-debtor's debt the property attached is no longer the judgment-debtor's but belongs to a third person. I am therefore of opinion that the application to sot aside the sale made by the interim receiver was not an application competently made by him under Section 47 of the Code. If it was nevertheless brought under Section 47 of the Code, then the second appeal must be dismissed. If the true view is that it is not under Section 47 of the Code, then it does not seem, to me that there is any second appeal. It may or may not be that where a sale has taken place, in certain circumstances, the receiver could by bringing a suit get the sale sot aside independently of Order 21, Rule 90. In this case, the receiver has not done so. I need not, in these circumstances, enlarge upon the fact that at the time this application was brought the receiver was only an interim receiver because in that view, it was quite impossible for him to take the attitude that he could represent the judgment-debtor for the purpose of having the property escape execution. I would here refer to the observations of Banerjee, J., in the case of Miller v. Lukhi Mani Debi [1901] 28 Cal. 419 at p. 421:

The question whether the point; in this case comes under Clause (c), Section 144, Civil P.C., has to be determined with reference to the nature of the objection raised by the Official Assignee.

5. In my view there are no merits in this case and the appeal must be dismissed with costs: hearing fee two gold mohurs.

Pearson, J.

6. I agree.


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