Naresh Nath Mukherjee vs The Economic Electroplating Works

Sen, J.—This revisional application u/s 115 of the CPC is directed against an order of Shri S. Chatterjee, Judge, Court of Small Causes, Calcutta, dismissing an application for bringing the Receiver on the record of the execution proceedings. The Petitioner as Plaintiff instituted the suit against the Economic Electroplating Works carrying on business at 12/1A Lindsay Street, Calcutta, on the allegation that the Defendant opposite party was a habitual defaulter and that notice to quit had been duly served on the opposite party Defendant. This suit was filed on July 3, 1951 and was numbered Suit No. 1648 of 1951. The Defendant appeared and filed a written statement on August 10, 1951 and the written statement was signed for the Economic Electroplating Works by one of the partners, K.N. Sen, who signed as the managing proprietor. A Receiver had been appointed for the business of the Defendant by the Original Side of the High Court in Suit No. 1948 of 1941, the appointment having been made on January 19, 1942. It was not stated in the written statement filed by the Defendant, the Economic Electroplating Works, that there was a Receiver for the business. In that suit, viz., Ejectment Suit No. 1648 of 1951 there was an order passed u/s 14(4) of the West Bengal Premises Rent Control Act, 1950, for payment of arrears of rent and current rent, but the arrears of rent was not deposited and, thereafter, the defence was struck out and the suit was decreed ex parte on November 13, 1951. When the Petitioner as a decree-holder tried to obtain possession of the premises in question he was resisted by an agent of the Receiver, the Receiver being opposite party No. 2, Mr. K.C. Mukherjee, Bar-at-Law. Thereupon, the Petitioner as decree-holder filed an application for bringing the Receiver on the record, that is, for adding him as party in the execution case. In the order-sheet of the lower court it is stated in the beginning that the application was for substitution of the Receiver for the original judgment-debtor, but towards the end there is a reference to bringing the Receiver on record and not to substitution. The original application does not appear to be on the record. This application was rejected by the learned Judge mainly on the ground that no notice u/s 80 of the CPC was served on him before the ejectment suit was filed in 1951. Against that decision the Plaintiff decree-holder has filed this revisional application.

On behalf of the Petitioner, Mr. Basu has argued that the learned Judge was wrong in holding that there could be no order for substitution of the Receiver or for addition of the Receiver in the execution case because of the non-service of the notice u/s 80 of the Code of Civil Procedure. It is difficult to understand how the question of service of notice u/s 80 can at all arise in connection with the application, because such notices have to be served in the necessary cases before the institution of a suit and notice u/s 80 has nothing to do with the addition of a new party in an execution proceeding. Further, it would not be necessary to serve notice u/s 80 on the Receiver even if he was sought to be made a party in the ejectment suit itself. The learned Judge relied on the ruling in the case of Jagadish Chandra Deo Dhabal Deb v. Debendra Prosad Bagchi ILR (1930) Cal. 850. That, however, was a suit against the Receiver for accounts, that is, for something that the Receiver had done in his official capacity as a Receiver. It has been held repeatedly that when the suit is for possession only against a Receiver no notice u/s 80 of the CPC is necessary. In this connection reference may be made to the ruling in the case of Bhuban Mohini Debi v. Biraj Mohan Ghosh (1939) 44 C.W.N. 74, where it was held as follows:

Section 80 of the CPC contemplates a suit against a public officer which seeks to make him personally liable for acts done or purporting to be done in his official capacity.

A suit merely for possession of a property against the owners of an estate in respect of which a Receiver has been appointed is not a suit against the Receiver within the meaning of Section 80, although there may be definite allegations against him of acts done in furtherance of the title and possession of the said owners and of collusion with them. It is a suit against the estate.

Accordingly, in such a suit no notice on the Receiver u/s 80 CPC Code, is necessary, although leave of the court whiph appointed him should be obtained before he can be made a party.

This decision is based on two Privy Council rulings, viz., Bhagchand Dagdusa Gujrathi v. The Secretary of State for India in Council (1927) 32 C.W.N. 61 (P.C.), and Rebati Mohan Das v. Jateendra Mohan Ghosh ILR (1934) 61 Cal. 470. I must clearly hold, therefore, that no notice on the Receiver would be necessary, even if we were concerned with the question of the Receiver being made a party in the suit. Thus, the main ground on which the learned Judge disposed of the application must be held to be without substance.

Mr. Purusottam Chatterjee, appearing for the opposite party Receiver, has urged that in any case, since the Receiver was not made a party in the original ejectment suit, he cannot now be added a party in the execution proceedings and execution cannot be obtained against him for the decree would not be binding against him. This takes us to the question whether it was necessary to implead the Receiver in the ejectment suit and whether the decree must be deemed to be ineffective as against the Receiver as the Receiver was not made a party. On this question, namely, whether it was necessary to implead the Receiver in the ejectment suit, the decisions of this High Court are not quite uniform. In two relatively old cases, namely, Kumar Suttya Suttya Ghosal v. Rani Golap Moni Debi (1897) 5 C.W.N. 27 and Ragder v. Ashutosh Mukerji (1902) 6 C.W.N. 829, it was held that the Receiver was not a necessary party to suit for possession of immovable property or for declaration of title when the beneficial owner was made a party. A few years later in the case of Jotindra Nath Chowdhury v. Sarfaraj Mia (1910) 14 C.W.N. 653, it was held that where the property in the hand of the Receiver was intended to be affected by the result of the litigation, the Receiver was a proper and necessary party to such suit by way of addition and not in substitution for the parties primarily responsible, the parties primarily responsible being, of course, the owners of the property, for the appointment of a Receiver does not operate as a transfer of the title from the actual owners to the Receiver, although the Receiver may be in possession of the property for the purpose of management under the direction of the court which appointed him. But again in a much later case, Satya Narayan Banerjee v. Raja Sree Sree Kalyani Prosad Deo Bahadur (1945) 49 C.W.N. 558, a different view was taken. In that case during the pendency of a mortgage suit a Receiver for the mortgaged property had been appointed by the Original Side of the High Court in another proceeding, but the Receiver was not made a party in the mortgage miit, and the preliminary decree and the final decree were obtained without making the Receiver a party. Subsequently, the decree-holder obtained leave of the court which appointed the Receiver to make the Receiver a party in the execution proceeding, but in the final execution proceeding in which the mortgaged property was actually sold, the Receiver had not been made a party, and still it was held that these execution proceedings were not vitiated by the failure to implead the Receiver as a party. It was held that the omission to make the Receiver a party to an execution proceeding against the Property of which he was in possession did not make the execution proceedings void ab initio. The trend of the decision was that such omission might at the most be an irregularity, but it would not affect the validity of the sale which had been held and confirmed. If the Receiver was to be held a necessary party in every case he ought to have been made a party even in the mortgage suit which was pending when the Receiver was appointed, but their Lordships did not hold that the decree was in any way bad because the Receiver had not been made a party in the mortgage suit. The position was explained in some detail in the case of Najerali alias Najerali Mondal v. Moulvi Baitulla Mondal (1947) 53 C.W.N. 214. In that case the question was raised whether a purchaser at a revenue sale could annul the intermediate tenure in the hands of the Receiver without obtaining leave of the court. It was held that for such annulment which was done under a statutory provision no leave of the court was necessary. In course of that judgment G.N. Das, J., observed on the authority of a Bombay ruling in the case of Jamshedji F. Shroff v. Husseinbhai Ahmedbhai AIR (1920) Bom 11, that there was no statute law which required the leave of the court appointing the Receiver before the institution of the suit against the Receiver, that it was a matter of procedure and was intended to maintain the dignity of the court by which the Receiver was appointed and that it was incompatible to allow the court''s officer to be interferred with in his enjoyment of the property unless the leave of the court appointing him was obtained previously, but neither of these considerations would affect the jurisdiction of the court to entertain a suit for ejectment against the real owner. It was held in that case that though a suit for ejectment could be entertained against the Receiver without the leave of the court having been previously obtained, there could be no decree passed until such leave had been obtained.

This, however, is the position when the Plaintiff knows of the appointment of the Receiver. In the present case, the Plaintiff-Petitioner is a stranger to the proceedings in which the Receiver was appointed for the business of the Economic Electroplating Works, and he in his petition supported by an affidavit stated that he did not know of the existence of a Receiver for the business until he actually went to take delivery of possession in the execution of the decree which had been obtained by him. As already mentioned before, the Defendant, viz., the Economic Electroplating Works, when they filed the written statement and when opposed the application u/s 14(4) of the West Bengal Premises Rent Control Act did not mention that there was a Receiver appointed for the business. Mr. Chatterjee has pointed out that the existence of a Receiver had been mentioned in the two applications for time to file the documents. There is, however, nothing to show that copies of petitions for time filed by the Defendant were served on the Plaintiff. In any case, even if the copies were so served, the petitions did not make it clear that the Receiver was appointed for the business of the Defendant firm. There was a simple casual reference to a Receiver without making it clear for what property or for what business he had been appointed. In the circumstances, there is no difficulty in accepting the contention of the Petitioner that he was not aware of the appointment of the Receiver for the business of the Defendant firm until he actually tried to take possession of the business in execution of the decree. In the circumstances, the Defendant firm or the partners thereof cannot challenge the decree in the ejectment suit as not binding as against them. As regards the Receiver, it has been urged by Mr. Chatterjee that possession in any case cannot be obtained against the Receiver, for he is not a party to the ejectment suit. The Plaintiff-Petitioner, how-ever, in execution of the decree does not seek to take possession of the business for which the Receiver was appoirfted. He only seeks to take possession of the premises in which the Defendant firm is carrying on the business. The Receiver may continue the business by shifting to another premises. The Petitioner has now obtained leave of the court which appointed the Receiver to proceed against him in execution pf the decree. In the circumstances, I must hold that there cannot be any objection to the addition of the Receiver as a party in the execution proceedings. There can be no substitution of the Receiver for the Defendant firm, because as observed by their Lordships in the case of Satya Narayan Banerjee v. Raja Sree Sree Kalyani Prasad Singh Deo Bahadur (1945) 49 C.W.N. 558, the Receiver is not a representative of either party and no title vests on him on appointment as a Receiver. So far as the application for substitution is concerned, it must fail, but there can be no, objection at all to the Receiver being added as a party in the execution proceedings.

Two projections urged by Mr. Chatterjee remain to be noted. His first objection is that it should be held that the present application has abated because both the original partners of the Defendant firm, namely, the Economic Electroplating Works, are dead. It appears, however, that one of the original partners, namely, Grolam Rabbani, died in May, 1948, long before the situation of the ejectment suit. A firm is no doubt dissolved the death of a partner, but it may be reconstituted and registered with the heirs of the deceased partner and in the present case, in the absence of any direct evidence to the astray, it must be held that the firm was so reconstituted for the ejectment suit was filed, because the other original partner, K.N. Sen, defended the suit by filing a written tement as managing proprietor and in the petition filed by in he described himself as one of the partners. In the circumstances, the death of an original partner Golam Rabbani in 1948 irrelevant in the present proceedings. It is also stated that K.N. Sen himself died on April 10, 1953 and it has been urged at since there has been no substitution for K.N. Sen, the application is not maintainable. Order XXX, Rule 4, of the Code of Civil Procedure, however, makes it clear that it is not necessary to join the legal representative of a deceased partner men two or more persons are sued in the name of a firm. Accordingly, no substitution of the heirs of K.N. Sen, the managing partner, was necessary and this application cannot fail bacause of his death and omission to substitute his heirs.

The second objection urged by Mr. Chatterjee is that the under of the learned Judge, Court of Small Causes, Calcutta, ejecting the application for the addition of the Receiver as a party must be deemed to be an order u/s 47 of the CPC in the execution proceeding following the ejectent decree and, in the circumstances, an appeal should have been filed from that order before the Chief Judge and that a provisional application direct to the High Court is not maintainable. But as already observed, the Receiver is not a representative of any party and it was held in the case of Satya Narayan Banerjee v. Raja Sree Sree Kalyani Prosad Singh Deo Bahadur (1945) 49 C.W.N. 558, that he is not entitled in the execution case to maintain an objection u/s 47 of the CPC is an objection to the addition of a party and it does not come within the scope of Section 47, Code of Civil Procedure. Accordingly, appeal would be maintainable and the revisional application the High Court is legally maintainable.

Accordingly, this Rule is made absolute. The order of the learned Judge refusing to add the Receiver as a party is beside and it is directed that the execution proceedings will proceed after addition of the Receiver as a party.

In the circumstances, no order is made as to costs.

Costs of the Receiver will be borne by the estate.