Damodhar Narain Singh vs Ganga Ram Marwari

Ross, J.—This is a set of six analogous Miscellaneous Appeals Nos. 262 of 1922 and 3 and 108 to 111 of 1923. There is also an application in revision being Civil Revision No. 425 of 1922. The appeals and the application in revision are directed against an order of the Subordinate Judge of Jamtara, dated 2nd December, 1922, made in money execution Case No. 12 of 1921 and in certain other execution cases against the Appellant. The following decrees for money were obtained against, the Appellant: (1) a decree for Rs. 44,570-6-2 by the Maharaja Bahadur of Kasirnbazar, (2) a decree for Rs. 22,422-13-6 by Ganga Ram Marwari, (3) a decree for Rs. 2,893-9-6 by Ramdeb Maiya, (4) a decree for Bs, 1,479-8 by Hosseni Mian, (5) a decree for Rs. 2,375-1-6 by Gopinath Bhagat, (6) a decree for Rs. 3,583-13-3 by Rameswar Marwari, and (7) a decree for Rs. 152-4-6 by Pasupati Das. The total amount of these decrees is Rs. 77,467-8-5. The judgment-debtor-appellant is Tikait Damodar Narayan Singh, Ghatwal of Ghati in the Santhal Parganas. The Commissioner of the Bhagalpur Division, in whose jurisdiction the Santhal Parganas lie in his letter No. 3345-B, dated the 20th November 1922, having sanctioned the attachment of the surplus profits of the Ghati Ghatwali Estate and rateable distribution of the surplus profits amongst the oreditors, the Subordinate Judge of Jamtara on the 2nd December, 1922, directed the attachment of the rents and profits of the ghatwali minus the necessary outgoings, and the appointment of Babu Debendra Nath Singh, Ganeral Manager, Wards Estates, Santhal Parganas, as Receiver of the attached property. He further directed the removal of the Tikait from the possession and custody of the Ghati ghatwali and that the same should be committed to the management of the Receiver. He also directed that the Receiver should as soon as possible ascertain the profits and necessary outgoings and submit to the Court for approval at once and subsequently every year an estimate of collection and expenditure including (1) pay of chowkidars and sardars, (2) other Government dues, (3) other debts due from the ghatwal for which decrees had been passed including the debts for which this attachment is ordered, and (4) maintenance of the ghatwal and his family. The first two items were to be considered as first charges on the estate. Other necessary directions were given and it was further ordered that a notice should issue on all the Mustajirs of the estate intimating that the surplus profits bad been attached and directing them not to pay rent to any one excepting the Receiver or a person authorized by him and making it clear that if they made any payments hence forth to any other person, they would do so at their own risk and it would not be a legal acquaintance.

The contention on behalf of the Appellant judgment-debtor is that a Receiver cannot be appointed inasmuch as the Ghati ghatwali is a Birbhum ghativali; that the Subordinate Judge has in effect appointed a Receiver in respect of future rents and profits and this be was not competent to do; that the estate does not go as a heritage but under the Regulation and that therefore the debts of the ghatwal for the time being do not affect the estate. It is further contended that if a Receivar is appointed the Receiver should be the Tikait himself.

The form of the order may be open to objection. I should have thought that if there was a legal remedy open by way of attachment a Receiver by way of equitable execution would not be appointed. The point of form is, however, immaterial because the real question for decision is whether a Receiver can be appointed or not. If a Receiver can be appointed the attachment order becomes nugatory. "Where the appointment is sought by way of equitable execution, the property over which a Receiver will be appointed is more restricted. It must be shown, not only that the property, over which the appointment is required, is capable of assignment, though this is essential, it must also be shown, except in cases of fraudulent conduct on the part of the judgment-debtor or other very special circumstances, that legal execution is impossible owing to some impediment, arising from the character in law, of the judgment-debtor''s interest." (Kerr on Receivers, Seventh Ed., p. 138). The learned Counsel for the Appellant relied on Rai Bahadur Prithi Chand Lal v. Kumar Kalikanand Singh (1912) 6 P.L.J. 366 as laying down that a simple contract creditor has no interest in the property over which he seeks the appointment of a Receiver unless he shows that although be may not have a specific charge on the property so as to give him priority, yet he has a right to be paid out of a particular fund. In that case the Court was dealing with the appointment of Receiver pendente lite and different considerations arise in a case of execution. In dealing with the question whether it is just or convenient that a Receiver should be appointed, the learned Counsel relied on the decisions in Holmes v. Millage (1893) 1 Q.B. 551, Edwards v. Picard [1909] 2 K.B. 903, Lucas v. Harris [1886] 56 L.J.Q.B. 15 and In re Saunders [1895] 2 Q.B. 117.

Now these are cases of future earnings, pensions and patents. They are therefore not strictly applicable to the present case. There is authority for the appointment of a Receiver in Udoy Kumari Ghatwalin v. Hari Ram Shaha (1901) 28 Cal. 483 where it was stated that if the Subordinate Judge had appointed a Receiver to take charge of the rents and profits as they fell due from time to time, no difficulty would arise; and in Kesobati v. Mohan Chandra Mandal (1912) 39 Cal. 1010. In that case it was pointed out on the authority of Kustoora Kumari v. Binoderam Sein (1865) 4 W.R. Mis. 5 that the surplus profits of a ghatwali tenure collected during the lifetime of the judgment-debtor are his personal property and thus liable to be taken in execution. It was further held that while it might be open to question whether a Receiver ought to be appointed to collect rents and profits that had not accrued at the time of the appointment and a merely prohibitory order without a Receiver might have been open to question, yet the appointment of a Receiver to receive the rents and profits seemed to be an order sanctioned by authority. In Rajkeshwar Deo v. Bunsidhar Marwari (1896) 23 Cal. 837 it was held that after deduction of all necessary outgoings from the total rent due to the ghatwal, the residue, being his own absolute property, could be attached in execution of a personal decree against him.

The effect of the principles and authorities stated above would seem to be that the rents and profits other than surplus being ear-marked for the payment of chowkidars sardars and Government dues, an order may be made that the surplus be placed at the disposal of the creditors, for there can be no question that the creditors are entitled to that surplus in execution of their decrees, and that for this purpose a Receiver may be appointed. This is what the order passed by the learned Subordinate Judge effects and is not open to any real objection. Nor is there any reason to interfere in the matter of the person to be appointed Receiver.

The appeals are dismissed with costs. The application in revision is also dismissed.

Jwala Prasad, J.

I agree.