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Maharaja Sir Rameshwar Singh Bahadur Vs. Bheekdari Singh and ors. and - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in28Ind.Cas.505
AppellantMaharaja Sir Rameshwar Singh Bahadur
RespondentBheekdari Singh and ors. And; Tekput Singh
Excerpt:
civil procedure code (act v of 1908), order xl, rule 1 - receiver, appointment of ground for--just and convenient--judgment-debtor will be reduced to poverty if his properties are sold, if ground for appointment of receiver. - .....is advertised for sale, lie is liable to become poor which can scarcely be a ground for the appointment of a receiver. the rule on that point is laid down in order xl, rule 1, and we do not see how the appointment can be considered just and convenient in the present case.6. we, therefore, set aside the order and decree the appeal with costs of both courts. we assess the hearing-fee at two gold mohurs.in a. no. 808 of 1911.7. this appeal is governed by the above judgment.in a. no. 530 of 1912.8. in consequence of the decision of appeals nos. 206 and 308, this appeal no longer requires decision. it is dismissed without costs.coxe, j.9. i agree.
Judgment:

Sharfuddin, J.

In A. No. 208 of 1911.

1. This is an appeal against an order oil the Subordinate Judge of Darbhanga, passed on an application under Order XL, Rule 1, Civil Procodtire Code. The Maharaja of Darbhanga is the decree-holder and, the respondents are the judgment-debtors.

2. A preliminary objection was taken to the maintainability of the present appeal, on the ground that the order appealed against was really not an order for the appointment of a Receiver but one granting an application for such an appointment. Reference was made to an order in the order sheet, dated 22nd February 1911, which is to this effect: 'judgment delivered, application for appointment of a Receiver is allowed. case disposed of', and this is followed by the order dated 10th March 1911, which runs as follows: 'Babu Ram Nihara Singh is appointed Receiver.' The reply was that the order of the 22nd February was an order for the appointment of a Receiver and reference was made to Order XLIII, Rule 1, Clause (s).

3. We are of opinion that the appeal is in substance an appeal against the appointment of a Receiver and is maintainable.

4. The only ground on which the order was made WHS a ground not warranted by law. The judgment runs: 'It is true there have been law suit between these parties for the last 5 or 6 years, but it has not been shown that these Babus are always in the wrong or ever committed any act of bad faith. The decree-holder, Maharaj, opposes this application and wants to soli even the houses in which his relatives (judgment-debtors) live immediately and would not agree even to a postponement of the sale. It is apparent that if the properties of the judgment-debtors are sold, there will be no other purchaser besides the Maharaj and it is apprehended with some show of reason that these properties will not fetch a proper price at the sale. Regard being had to this fact and to the fact that the Hi bus who are up to this time very respectable persons would be reduced to poverty if the properties are allowed to be sold, I am of opinion that it is just and convenient that a Receiver of all their properties be appointed.'

5. This is no ground for the appointment of a Receiver and all the necessary elements for that purpose are wanting in tin's case. In all eases in which a judgment debtor's property is advertised for sale, lie is liable to become poor which can scarcely be a ground for the appointment of a Receiver. The rule on that point is laid down in Order XL, Rule 1, and we do not see how the appointment can be considered just and convenient in the present case.

6. We, therefore, set aside the order and decree the appeal with costs of both Courts. We assess the hearing-fee at two gold mohurs.

In A. No. 808 of 1911.

7. This appeal is governed by the above judgment.

In A. No. 530 of 1912.

8. In consequence of the decision of appeals Nos. 206 and 308, this appeal no longer requires decision. It is dismissed without costs.

Coxe, J.

9. I agree.


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