Chaudhury Kedarnath Thakur vs Mohamood Ali Khan

Jwala Prasad, J.—The appeals and revisions have been heard together, as they arise out of the same order of the Subordinate Judge of Patina dated the 13th of August 1920. The question involved in all these cases is the same.

The Subordinate Judge of Patna by his order issued a robkar to the Subordinate Judge of Darbhanga, requesting him to prevent the Receiver, appointed by him in execution proceedings, from interfering with the taking possession of the 6 annas share of the estate commonly known as Paigambarpur Estate. The order issued in Suit No. 32 of 1919, in which the plaintiffs sought confirmation of possession over the 6 annas of the estate impugning the right of one of step brothers, Sadat Ali Khan, of mortgaging or in any way alienating the said share of the plaintiffs in favour of the defendants, who have now purchased their 16 annas of the property, including the aforesaid skim of the plaintiffs, in execution of their mortgage-decrees.

The history of the litigation between the plaintiff and Sadat Ali and other members of the family regarding their right in the estate which originally belonged to Iqbal Ali Khan, who died in 1887, is a long and somewhat complicated one and need not be gone into in detail in this case. The defendant, as already stated, held mortgages of the property in question on the basis of documents executed by Sadat Ali Khan alone. After the sale of the property in execution of these mortgages, applications were made to set aside the sale under Order XXI, Rule 90, Civil Procedure Code. These applications are still pending. In the meantime the present suit in connection with which the order was passed by the Subordinate Judge, which is the subject matter of the appeal before us, was instituted on the 14th of March 1919 by the respondent Mohmood Ali Khan. Upon the applications of the decree holders, purchasers, the Subordinate Judge of Darbhanga passed an order, dated the 7th of June 1920, in Execution Case No. 180 of If 19, directing the appointment of a Receiver to take possession of the mortgaged properties and to deposit the income of the same in Court after meeting expenses under the directions of the Court. The aforesaid order was passed in the presence of the judgment, debtors and the plaintiff opposite party, Mohmood Ali. The latter resisted the appointment of a Receiver obviously on the basis of his claims to the 6 annas of the properties in question, with respect to which the present suit was instituted by him. His objection that the appointment of a Receiver would prejudice him was replied to by the Subordinate Judge in the following words:

If Ledu Baba (Mohmood Ali) eventually succeeds in his unit, he can get the proportionate income of his share in claim from the deposits.

Aggrieved by that order of the Subordinate Judge of Darbhanga, Mohmood Ali appealed to this Court. He also applied for ad interim, stay of the order appointing the Receiver. The latter application was held by this Court (Das and Adami, JJ.) to be premature, inasmuch as no Receiver was actually appointed. The appeal against the order, I am told, was not prosecuted and was ultimately dismissed. In the order dismissing the application their Lordships observed:

This, of course, will not prejudice the right of the petitioner to apply to this Court or any other Court after the Receiver has been appointed.

The order is dated the 12th of July 1920. Soon after this order on the 28th of July the opposite party-respondent pat in an application in Suit No. 32 of 1919, supported by an affidavit, praying for a temporary injunction "restraining the Receiver from taking possession of the property till the decision of the case." The petition was disposed of on the 13th of August 1920, after the hearing of the parties concerned. In the meantime on the 20th of July 1920 a Receiver was appointed in the execution case in the Court of the Subordinate Judge of Darbhanga, and on the 24th of July 1920 he is reported to have taken charge of the properties and to have issued parwanas to the amlas. The appeals have accordingly come to this Court, inasmuch as the appellants feel themselves aggrieved by the order of the Subordinate Judge of Patna, issuing a rubkar upon the Subordinate Judge of Darbhanga restraining the Receiver from interfering with the possession of the respondents. This is the order we are concerned with.

The order is obviously (insupportable, inasmuch as the contingencies referred in Order XXXIX, Rule 1, Clause (2), entitling the Court to issue ad interim injunctions do not at all arise in this case. The Receiver was appointed by the Darbhanga Court after the sale of the property pending the disposal of the objections of the judgment-debtor and the confirmation of the sale The Receiver thus became an Officer of the Court and the possession taken by him was on behalf of the Court and will be deemed to be that of the Court. One subordinate Court has no right to restrain the action of the other co-ordinate Subordinate Court by any order or rubkar, such as that passed in the present case by the Subordinate Judge of Patna. Without going into further details in order to examine all the circumstances one by one under which the temporary injunction can be issued, I have no hesitation in coming to the conclusion that the present order in question of the Subordinate Judge of Patna cannot possibly come within the purview of Order XXXIX, relating to temporary injunctions. In fact the order is not supported under that Order, but it is said that the appeals and revisions of the decree-holders-purchasers are themselves incompetent, inasmuch as the order passed by the Subordinate Judge is not an order under Order XXXIX, Rule 1, Clause (2). It is also stated that the order passed is not supportable by any provision of the Code of Civil Procedure. If this so, the Subordinate Judge had no right to pass any order which is calculated to prejudice any of the parties before him, unless he is authorised to pass such an order by the express provision of the law. The order, therefore, is bad and must be set aside and the Subordinate Judge of Darbhanga, who is executing the decrees of the appellants, is entitled to ignore the aforesaid order altogether.

The respondents, it is said, were apparently under a misconception on account of the remarks made by this Court that they could take such a plea as they were advised to do after the actual appointment of the Receiver. There was no room for such misconception, and it must have been obvious to them that the appointment of the Receiver was the matter which appertained to the Executing Court of the Subordinate Judge of Darbhanga and that an appeal from that order lay to this Court. They claim to be in possession of 6 annas of the property in respect of which they have brought the present suit. They were not parties to the mortgages executed by Sadat Ali Khan or to the decree. They are, therefore, obviously not bound by the proceedings adopted by the Subordinate Judge of Darbhanga for the appointment of the Receiver, and their possession, if any, of the property could not be disturbed by the Receiver under Order XL, Rule 1(2). That clause says:

Nothing in this rule shall authorise 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 respondents, therefore, fail to have any right to the appointment of the Receiver or to the taking of possession of the property. Their only remedy was under the said Order XL, Rule 1(2). We are not in a position to say whether there was any possession or not. The matter is sub judice in the Court of the Subordinate Judge of Patna and the Executing Court in Darbhanga is also competent to take notice of the claim, if any, as to the possession of the respondents to 6 annas of the properties in question. The case before the Subordinate Judge of Patna instituted by the opposite party respondents has become two years old and the present litigation between the parties can only be set at rest by a speedy disposal of this suit. It is no use discussing the reasons for the delay (hat has already occurred, but we desire and direst that the record of the case be at once sent down and the Title Suit No. 32 of 1919 be disposed of as quickly as possible. With the aforesaid remarks I allow these appeals and applications and dismiss the applications made by the opposite party to the Subordinate Judge. In view of all the circumstances of the case disclosed by the voluminous records I do not think that I should direst any order as to costs.

Adami, J.

I agree.