Banwari Lal Sahu vs Baldeo Sah and Others

Agarwala, J.—In these two civil revisions and in Second Appeal No. 448 of 1941 the same question of law arises and all these cases must succeed or fail according to the decision of this question. For the purpose of appreciating what the question is, it will be sufficient to state the facts in relation to Civil Revision No. 113. The petitioner obtained a money decree against the opposite party for about Rs. 6000. The opposite party is an occupancy raiyat in an area to which the Chota Nagpur Tenancy Act applies. Section 47 of that Act prohibits the sale of the right of a raiyat in his holding in execution of any decree, subject to certain exceptions immaterial to the present cases. Not being able therefore to realize the decretal dues by sale of the judgment-debtor''s holding the decree-holder applied for the appointment of a receiver. This was opposed by the judgment-debtor but his objection was overruled and, by agreement between the parties, the person appointed as receiver was the decree-holder himself. This was; on 20th July 1935. On 20th December 1939 in Permeshwar Ram v. Charu Ram AIR 1942 Pat. 52 , I decided that a Court has no jurisdiction to appoint a receiver in respect of a raiyat a holding the sale of which is prohibited bylaw. Soon after the publication of this decision, the judgment-debtor applied for discharge of the receiver in the present case on the ground that the Court had no jurisdiction to appoint him. This application was allowed and the receiver was discharged. Against that order the decree-holder appealed to the Judicial Commissioner. The appeal was dismissed and the decree-holder has moved this Court.

It has been contended that the decision in Kunja Bihari Chandra Vs. Emperor, requires reconsideration in view of a number of authorities which were not cited before but which have been cited before me at the present hearing. The facts of that ease were that the holder of a money decree against the deceased father of certain agriculturists, applied for execution of the decree against the assets of the deceased in their hands, and the Court appointed a receiver of the properties which the cultivators had inherited from their father. The question which was raised was whether in view of the fact that Section 47, Chota Nagpur Tenancy Act, barred the sale of the holding in execution of a decree, the decree-holder was a person who had a present right to remove his judgment-debtor. I held that he was not, relying on the Pull Bench decision of the Allahabad High Court in Anandi Lal v. Ram Sarup AIR 1936 All. 495 in which it was held that the Court has no power to appoint a receiver of mortgaged properties pending an appeal from a preliminary decree for sale on a simple mortgage, on the ground that a simple mortgagee has no right to possession of the mortgaged property. The wider question that he is now raised was not raised in Permeshwar Ram v. Charu Ram AIR 1942 Pat. 52 . That question is: Does Sub-rule (2) of Rule 1 of Order 40 protect the possession of a party to a suit or proceeding in which the appointment of a receiver is sought? The sub-rule is in this language:

Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

The Full Bench held that the words ''any person'' are not confined to strangers, but include parties to the suit or proceeding. The decision of the Allahabad High Court has not been accepted by other Courts in a number of cases to which I have now been referred.

Rule 1 of Order 40 empowers a Court to appoint a receiver of property where the Court considers it to be just and convenient so to do, and Section 51 of the Code provides for the appointment of a receiver as one of the modes of executing a decree. Prima facie, therefore, in a case where the Court considers that it is just and convenient to execute a decree by the appointment of a receiver, it has power to adopt that course unless there is anything in Sub-rule (2) or elswehere which prohibits it. It has been contended that apart from Sub-rule (2), the Court should not appoint a receiver in a case where the sale of the holding is prohibited as that would defeat the object of the Legislature in prohibiting the sale. Under the law of Chota Nagpur, however, the Legislature has thought fit only to prohibit the sale of a holding in execution of the decree and not to prevent execution of a decree against an agriculturist in any other way open to the decree-holder. The learned advocate for the opposite party relied on certain observations of Lindley L.J. in Lucas v. Harris (1887) Q.B.D. 127 at p. 136. That was a case in which an attempt was made to take in execution the pensions of some army officers which had been declared inalienable by the Army Act of 1881. Lindley, L.J. observed: "It appears to me, therefore, both on principle and on authority, that the pensions of these defendants, being made inalienable by statute, are not liable to be taken in execution either through an order for a receiver, or in any other way." The Court considered that as the pensions were declared to be inalienable by statute, the Court ought not to restrain the defendants from receiving them and thereby do indirectly what the statute prohibited it from doing directly. That, if I may respectfully say so, is a very proper matter to be taken into consideration when a Court is deciding whether it is "just and convenient" to appoint a receiver within the meaning of Sub-rule (1) of Rule 1 of Order 40, but it is not the question which falls to be decided in the present cases. Originally the Court below did appoint a receiver, so it may be assumed that it was satisfied that it was just and convenient to do so in spite of the bar to a sale of the judgment-debtor''s holding imposed by Section 47, Chota Nagpur Tenancy Act. The question before me is whether it was competent for the Court to appoint a receives in view of the language of Sub-rule (2) of Rule 1 of Order 40.

Coming now to Sub-rule (2) of Rule 1 of Order 40, it has been observed in the cases which have now been cited that if the words ''any person'' include persons who are parties to the suit, it is practically impossible for the Court ever to appoint a receiver at all for example, take the case of a decree for money against a non-agriculturist. The decree-holder has a right to execute his decree against the property of the judgment-debtor, and by reason of Section 81 of the Code, the method he may choose is by appointment of a receiver provided that the Court is satisfied that in the circumstances of the case this is a just and convenient way of executing the decree. But if Sub-rule (2) applies to a judgment-debtor, this method of execution is completely barred for the decree-holder cannot be said to have a present right to remove a judgment-debtor from property which belongs to him and of which he is in possession. The object of Sub-rule (2) appears to be to impose a restriction on the general power of the Court to appoint a receiver where it is just and convenient, by providing that a person who is not a party to the proceedings shall not be dispossessed by a receiver, and it does not appear that the rule is intended to restrict the power of the Court to interfere, by the appointment of a receiver, with the possession of a person who is a party to the proceeding, except, of course, in cases where there is a legal bar to dispossession of such a person. It is on that ground I think that the case in Amir Uddin v. Nanak Sahi AIR 1937 All. 389 which was relied upon by the opposite party was decided. It was a case governed by the Agra Tenancy Act, Section 23 of which renders the interest of an exproprietary or occupancy tenant not "transferable" either in execution of a decree or otherwise. The learned Judges who decided that case appear to have taken the view that the Act prohibited the dispossession of an exproprietary or occupancy tenant in execution of a decree or otherwise and that the appointment of a receiver amounted to dispossession of the judgment-debtor. They distinguished the case in Manohar Singh v. Raiz-Ud-Din AIR 1934 All 605 . which was a case governed by the Bundelkhand Land Alienation Act of 1903. Section 16 of that Act prohibits the "sale" in execution of the decree of any land belonging to a member of an agricultural tribe, and it was held that this prohibition does not operate to prevent the appointment of a receiver as a mode of execution of a simple money decree obtained against an agriculturist. With reference to this case the learned Judges who decided Amir Uddin v. Nanak Sahi AIR 1937 All. 389 observed: "The prohibition (that is the prohibition u/s 16, Bundelkhand Land Alienation Act) therefore was merely against a sale and not against the transfer of the, proprietary interest in the land."

The provisions of the Code with which I am dealing were not expressly referred to in Rajindra Narain Singh v. Mt. Sundar BibiA.I.R. 1925 P.C. 176 which was decided by the Privy Council; but it cannot be supposed that Sub-rule (2) of Order 40, Rule 1 was overlooked by their Lordships. It was there held that although the right to receive maintenance out of certain properties is not attachable or saleable in view of Section 60(m), Civil P.C., a receiver may be appointed to realize the rents and profits of the properties for the purpose of liquidating a decree-holder''s dues. That was a case where the appointment of a receiver resulted in dispossession of a party to the proceeding and indicates that Sub-rule (2) is not intended to prevent the appointment of a receiver in such a case. In Vythilinga Pandarasannadhi v. Thiagarajaswami Devasthanam AIR 1932 Mad. 193 the matter was directly considered by a Division Bench of the Madras High Court and it was held that Sub-rule (2) refers to a case where the person in possession is a third party and the parties to the suit have no present right to dispossess him, but that where the dispute is between parties to the suit, if it is just and convenient for the purpose of enforcing or carrying out the directions in a decree, a receiver may be appointed even where the party in possession is not liable to be removed. In Damodar Moheshwar v. Radhabai Damodar AIR 1939 Bom. 54 the meaning and effect of the Sub-rule were stated to be perfectly plain and to be for the benefit of third parties and to indicate that the wide words of Sub-rule (1) were not to be construed so as to justify the Court in removing from possession or custody of property a third person who has a good title to such possession or custody as against the parties to the suit. In Amarnath v. Mt. Tehal Kuar AIR 1922 Lah. 444 it was held that Sub-rule (2) does not debar the Court from removing one of the parties to the litigation from the possession of property of which he is in possession, by the appointment of a receiver. To the same effect is the decision of the Calcutta High Court in Satya Narain Singh v. Keshabati Kumari AIR 1915 Cal. 35 .

In view of all these authorities, holding that Sub-rule (2) of Rule 1 of Order 40 is intended only for the protection of persons who are not parties to the litigation, I am constrained to hold that the present revisions and the second appeal must be allowed with costs throughout: Hearing fee in the civil ''revisions will be one gold mohur each.