1. This is an appeal against an order made by McNair J. on 26th August 1936, whereby he dismissed an application on the part of Kanti Chandra Mukerji who was seeking by that application to obtain 'personal execration' of a certain decree against one Mukundalal Barman. The application was in fact made by a summons dated 9th July 1936 addressed to the defendant abovenamed, that is to say, Mukundalal Barman in these terms:
Take notice that you are hereby required under Rules 22 (i)and 37 (1)of Order 21, Civil P.C., to appear in person before the Judge in Chambers on 4th August 1936 at eleven o'clock in the forenoon to show cause why the decree passed against you on 10th September 1931 in the above suit should not be execrated against you and why you should not be committed to jail in execution of the said decree.
2. There is a tabular statement dated 27th June .1936 in which the usual particulars are given. The date of the decree was stated to be 10th September 1931; the amount of the debt was described at Rs. 2310 being the decretal amount and
Rupees 668-1-2 being the interest at the rate of 6 pec cent. per annum from 10th September 1931 to 12th June 1936 aggregating in all Rs. 3008-1-2.
3. There was another claim as to costs, and the applicant prayed that the total sum of Rs. 3792.7-0 together with the costs of the execution be realised by arrest and imprisonment of the judgment-debtor. McNair J. dismissed the application because he accepted the argument which had been put forward on behalf of the Judgment-debtor be the effect that at the time when the execration proceedings were instituted, the plaintiff who had originally sued in the character of a Receiver had ceased to have that character and because he was no longer a Receiver, he was not entitled to put the decree of 10th September 1931 to execution. It is to be observed at the outset that the decree itself does not mention the fact that Kanti Chandra Mukerji was suing in any capacity other than in his personal capacity and he is described in the decree thus:
Kanti Chandra Mukerji, Official Receiver, High Court, Calcutta, having his Office at the said High Court Buildings, Calcutta, aforesaid.
4. The defendant was described as:
Mukundalal Barman residing and carrying on business at No. 84, Upper Chitpore Road in the town of Calcutta within the local limits of the jurisdiction aforesaid, Hindu Merchant.
5. It seems to me that so far as appears on the surface the words 'Official Receiver, High Court' were merely a description of the occupation and the standing of the plaintiff in the same way as were the words 'Hindu Merchant' as regards the defendant. The ordering portion of the decree was in a very simple form:
It is ordered and decreed that the defendant do pay to the plaintiff the sum of Rs. 2340 with interest thereon at the rate of 6 per cent. per annum from the date hereof till realisation and also do pay the plaintiff his costs in the suit.
6. If therefore, the Court whose jurisdiction was being invoked for the purpose of executing the decree had merely considered the decree superficially and had in no way gone behind the decree there was nothing to apprise the Court of the fact that the suit in which the decree had been made, was brought-and successfully brought-by a person who was functioning as a Receiver at the time when the suit was instituted. 14 was, as I have stated, however brought to the attention of McNair J. that Kanti Chandra Mukerji had instituted the suit in his capacity as Receiver; that he had ceased to be the Receiver as long ago as the month of June 1932 and having been divested of all his rights as Receiver, Kanti Chandra Mukerji was no longer in a position to take proceedings for the realisation of the money awarded to him under the decree of 10th September 1931. In order to make the position clear, it is necessary to refer to one or two events and give certain dates.
7. In the year 1915 a suit was brought by one John Carapiet Galstaun against Banku Behary Dhar and others in respect of a mortgage of certain premises known as 84 Upper Chitpore Road in this City, Mukundalal Barman who was the respondent to the application before McNair J. and who is the respondent in the appeal before us was a tenant on the ground floor of those premises in Upper Chitpore Road under Banku Behari Dhar at a rent of Rs. 180 a month. The suit seems to have proceeded in a somewhat halting fashion because after a considerable lapse of time, namely on 26th July 1926 the then Official Receiver was appointed Receiver in the suit of the property I have mentioned. On 24th May 1927 a final decree was made in this mortgage suit. More than two years later, that is to say on 21st September 1929 the mortgage property was brought to sale and sold by the Registrar of this Court and was purchased by a man named Prodyumnya Kumar Mullick for the sum of Rs. 3,70,000. In the meantime a lady named Radharani Dasi had put in a claim on behalf of some idol asserting certain rights over the property which was the subject of the mortgage. It appears that this lady actually instituted a suit to enforce those rights. That suit was finally disposed of on 23rd June 1930. It is I assume, only by carelessness and bad printing that we find the expression on page 35 of the paper-book, 'without pre-judice to the confusion raised by the said defendant Sm. Radharani Dasi'. She had at any rate created some difficulty which, however, was removed, by the decree oil 23rd June 1930 and thereupon-this is an important factor in the history of the matter-the balance of the purchase money became payable by Prodyumnya Kumar Mullick. He, of course, at the time of the sale in September 1929 made the usual sort of deposit.
8. The next event in chronological order, and this is really the cardinal feature of the whole matter,-was that on 18th November 1930 Prodyumnya Kumar Mullick obtained an order giving him leave to pay the balance of the purchase money and for confirmation of the sale of the property to him. By that order, the Official Receiver (who by that time was Kanti Chandra, Mukerji who had succeeded the previous incumbent of the office) was directed to make over possession of the property which had been purchased at the sale on 21st September 1929, to the purchaser upon production by him of the appropriate certificate of sale. There seems no doubt that the order of 18th November 1930 was the outcome of an application on the part of Prodyumnya Kumar Mullick for leave to pay the balance of the purchase money in order that there might be completion of the sale. On 17th March 1931 there was another order. It is an order made on the application of the Imperial Bank of India who were the assignees of the original mortgagee John Carapiet Galstaun, because Prodyumnya Kumar Mullick had not deposited the balance of the purchase money in terms of the order of 18th November and the order obtained by the Imperial Bank of India, on 31st March was to the effect that if Prodyumnya Kumar Mullick did not pay the money within three weeks in terms of the order of 18th November 1930 then that order would stand revoked and cancelled. Shortly thereafter the Suit (No. 1460 of 1931) out of which the execution proceedings arose,-proceedings with which we are now concerned,-was instituted, and as I have already indicated by reference to the decree which was eventually passed in that suit it was a suit between Kanti Chandra Mukerji and Mukundalal Barman for rent amounting to Rs. 2340 due from him in respect of his tenancy in the premises No. 84, Upper Chitpore Road for the period May 1930 to May 1931. The defendant did not appear, and accordingly on 10th September 1931 a decree was made in favour of the plaintiff for the rent claimed together with interest and costs, as already mentioned. In the meantime, however, that is to say on 23rd June 1931, Prodyumnya Mullick had paid the balance of the purchase money. In January 1932 another suit was started by Kanti Chandra Mukerjee, claiming rent for the period of June 1931 to December 1931. That was a claim for Rs. 1260. Again there was no appearance on behalf of the defendant, and eventually there was a decree in that suit for the amount claimed. It was made on 12th April 1932. In this particular appeal we are not concerned with that decree. On 26th January 1932 Prodyumnya Mullick applied for and obtained an order for amendment of the sale certificate by substituting his own name for the names of his two minor sons, because the property was purchased by him. That apparently was necessitated by the fact that in the original order of 18th November 1930, permission had been given for the certificate to be issued in the names of the two minor sons. On 3rd February 1932 the order of 26th January 1932 was filed, and on 9th March 1932' the sale certificate was made out. On 14th April 1932 there was a letter from the Attorney for the purchaser stating that the original sale certificates could not be produced and certified copies were produced instead. These sale certificates were forwarded by the attorney on 8th June 1932.
9. Then there was a request for delivery of possession, and as an outcome of that on 17th June 1932, there was a latter written by Kanti Chandra Mukerji to all the tenants of the property which was the subject of the sale, stating that pursuant to an order of the Court dated 18th November 1930, he had been discharged and had made over possession of the property to the purchaser Prodyumnya Kumar Mullick of No. 7, Prosonna Kumar Tagore Street, and requesting them to attorn and pay rent to Prodyumnya Kumar Mullick. That is how the matter as regards the letter of 17th June 1932, was originally stated to us by Mr. Kanjilal appearing on behalf of the respondent to this appeal.
10. Before I deal with that, I should emphasize the fact that the application for execration was not made until some four years later, namely on 9th July 1936, Mr. Kanjilal has argued that the effect of the letter of 17th June 1932 was to discharge Kanti Chandra Mukerji from his office as the Receiver appointed in the Original Mortgage Suit No. 744 of 1915, and that therefore although he might have been empowered and entitled to institute suits No. 1460 of 1931 on 5th June 1931 and although he was entitled to get the decree which was made in that suit about three months later, he was not entitled in the year 1936 to put that decree to execution. At the outset of his argument, Mr. Kanjilal put forward the contention that the Receiver was discharged, at any rate, in the month of June 1932 as stated by him in his letter of 17th June 1932 and this matter should be decided here and ought to have been decided by the learned Judge, upon the footing that at the time of the execution proceedings, the Receiver had long since become functus officio. As I have already stated, it seems to me, that that was the view accepted by the learned Judge, and the view which induced him to dismiss the application. Had the position been so simple as that, we would have to consider whether or not, a Receiver who has once obtained a decree while in office as a Receiver, or rather when a person has once obtained a decree while in office and in his character as a Receiver, can put that decree to execution on a subsequent data although in the meantime he had been discharged from his office and had ceased to be a Receiver. That might have been a very difficult or, at any rate, not an easy question to decide. But the facts appear to be not quite as they were originally opened by Mr. Kanjilal.
11. Mr. Kanti Chandra Mukerjee did not state in his letter of 17th June 1932, that he had been discharged, and had made over possession to the purchaser Prodyumnya Kumar Mullick. What he did state is this:
Pursuant to an order of Court dated 18th November 1930, I have been discharged from further acting as Receiver of the above plot of the above premises and have made over possession of the same to the purchaser Babu Pradyumnya Kumar Mullick of No. 7, Prosanna Kumar Tagore Street to whom please attorn and pay rent.
12. So that, all that the Receiver actually said was that he had been discharged so far as that particular plot was concerned. He did not state that he had been discharged absolutely or that he had ceased to function as Receiver for all possible purposes. It is to be observed that Kanti Chandra Mukerjee was the Receiver in the mortgage suit, and as such the mortgage property was in his possession. But also, as such Receiver, there had come into his possession another piece of property, namely the decree of 10th September 1931. He had acquired a right in his capacity as Receiver which appears to be a right of some value. There is nothing in the letter of 17th June 1932 to suggest that Kanti Chandra Mukerjea had divested himself of that right. But after all it does not matter much what the letter said, or what the Receiver thought, the real question is what is the legal position. Therefore it is important to observe the terms of the order of 18th November 1930. The operative part of that order runs thus:
It is further ordered that upon payment of the said balance of the purchase money and transfer of the said deposit by the said Registrar into Court as aforesaid, the said sale be confirmed and that a certificate of Bale in respect of the said plots A, B and C be granted to the said purchaser, in respect of the said plot D be granted to the said Provash Kumar Mullick and in respect of the said plot E be granted to the said Profulla Kumar Mullick. And it is further ordered that the said Registrar do pay to the said purchaser the interest that has accrued due from the twenty first day of September one thousand nine hundred and twenty nine up to the date hereof on the fixed deposit of the said sum of Rupees Ninety two thousand and five hundred. And it is further-ordered that the said Official Receiver and the defendants do make over possession thereof upon production of their respective certificates of sale. And it is further ordered that the monies so to be paid into Court as aforesaid be not paid out without the further order of the Court to be obtained upon notice to the said purchaser.
13. It seems to me clear beyond all question that that order purported to be no more than, and was in fact no more than one granting permission to the purchaser to pay the balance of the purchase money with the consequential effect that the property should be handed over to him so that the sale would be complete. There is nothing in the order of 18th November 1930 discharging or even hinting at the discharge of the receiver for all purposes, and it was not made in proceedings taken for the purpose of discharging the Receiver. Mr. Kanjilal thought that he had found a useful and appropriate passage in Kerr on Receivers, a passage which seemed to indicate that where a Court has made an order directing a Receiver to hand over possession of property that order automatically operates as a discharge of the Receiver. The authority for that proposition is an old case reported in Irish Equity Reports Vol. 2, p. 416. In a foot-note there was a reference to a case Ponsonby v. Ponsonby (1825) 1 Hogan 321, in which, it is said, the Master of the Rolls held that the injunction to put a purchaser into possession is, ipso facto, a discharge of the order appointing a Receiver over the lands mentioned in the injunction. The actual case itself reported in Vol. 2, Irish Equity Reports 416, is an anonymous one, and the head-note runs thus:
Where it appeared that the receiver has passed his final account in 1629, when there was a small sum due to him; that the purchaser under the decree in the cause was put into possession the same year; and that the receiver had not received any of the rents since his last account; the Court granted an order to vacate the receiver's recognisance although the receiver had not been formally discharged. The injunction to put the purchaser into possession amounts to a discharge of the receiver.
14. It is clear from the facts of the Irish case that it is quite different from the present case. It has no real bearing on the point which is now before us. In that Irish case the Receiver passed his final accounts and had received nothing more after the final accounts had been passed, nor did anything remain to be done to the property transferred. In the present instance no account, certainly no final account of Kanti Chandra Mukerjee as the receiver in Suit No. 744 of 1915, has yet been passed, and there is in his hands, as far as one can see, a piece of property which was neither dealt with by the order of 18th November 1930, nor by any order of Court. I refer of course to the decree of 10th September 1931. It seems to be the case that when he made his application for execution in July 1936, Kanti Chandra Mukerjee must have been himself of the opinion that he was still entitled to function as a Receiver and to do his bast to get in the proceeds of the decree of 10th September 1931. That in my opinion was the real position. The order of 18th November 1930 was obviously, in a sense, an additional order which did not take snoot as it happened until the month of June 1932, but even then it was only operative as regards the actual property specified in the order itself. It had nothing to say as regards the decree of 10th September 1931, nor as regards the position of the Receiver generally. In those circumstances it cannot be said that either in November 1930, or in June 1932, was there any discharge of the Receiver save as regards the property actually referred to in the order itself. It follows therefore that Kanti Chandra Mukerjee was not in the year 1930 or in the year 1932, or as far as one can see, on any subsequent date, divested of his right to enforce the decree which had been obtained by him on 10th September 1931.
15. We are accordingly, of opinion that the learned Judge was wrong in dismissing the application. He should have taken upon himself the burden of deciding whether there should be execution in the manner naked for in the summons of 9th July 1936 or in some other manner. The appeal will be allowed and the matter will be remitted to the Judge taking the interlocutory list to be dealt with on 12th April next or on the first open date thereafter. The costs in this appeal will be party and party costs as against the respondent and the receiver will get the balance of the costs, as between attorney and client from the estate. The Receiver will be entitled In the first instance to retain the amount of costs out of the funds in his possession. Costs of the summons will abide the result. If any affidavit is to be filed by the respondent it must be filed by 8th April next and any reply by the Receiver must be by 10th April next.
16. I agree.