Raja Shyam Sunder Singh vs Dhirendra Nath Chandra and Others

Wort, J.—This is an appeal from the decision of the Subordinate Judge of Dhanbad given on September 16, 1936, in an objection taken by the judgment-debtor to an execution by the respondents. It would appear that the respondents who were the decree-holders, obtained their decree for something in excess of a lakh of rupees on February 29, 1932. There were applications for execution and eventually at the instance of the judgment debtor a Receiver of his estate was appointed. The question of his discharge appears to have come before this Court on January 11, 1935, a consent order was made. The consent order provided for the appointment of two Receivers of the estate of the judgment debtor excluding seven villages; the order was stated in these terms:

The order of the Subordinate Judge, dated December 5, 1933, is hereby set aside and Mr. Surendra Narain Roy and Mr. Praboth Kumar Chandra, Pleaders, are appointed joint Receivers of the estate of the judgment-debtor excepting the properties mentioned in Order No. 66, dated January 22, 1934.

The properties mentioned in Order No. 66 are the seven villages to which I have referred. The execution taken out by the decree holders is against those seven villages. The learned Judge in the Court below, as I have already indicated, has dismissed the objection of the judgment-debtor. It is now contended by Mr. Janak Kishore that the decree-holders are estopped by their consent to the order of January 11, 1935, part of which. I have read. I must say I am unable to follow that argument unless it could be said that the consent order not only excluded the seven villages from that part of the estate which was to be taken possession of by the Receivers, but also excluded them from any future execution. Mr. Janak Kishore frankly admits that the consent order of January 11, 1935, cannot be construed in that way, that is to say cannot be construed in a manner which would exclude the seven villages from execution. When once that admission is made, it seems to me that the matter is quite clear. There is no reason why the decree-holder should not take out any or all the forms of execution which the CPC entitles him to pursue against various items of the judgment-debtor''s property. In this case, treating the appointment of Receivers as a form of equitable execution, there seems to be no reason why the decree-holders should not proceed against the properties, which were not the subject-matter of the order dated January 11, 1935. The case in Maharajadhiraj Sir Rameshwar Singh Bahadur Vs. Hitendra Singh, , has been relied upon. That was a case, however, in which the application was for the discharge of the Receiver to enable the decree-holder to proceed in execution, and the only point decided in that case was that, by consenting ,to that form of execution, that is to say, the appointment of the Receiver, the decree-holder was bound. Reference was made during the course of the argument in that case to the decision in Re Bond: Capital & Counties Bank, Ex parte (1911) 2 K.B. 988 : 81 L.J.K.B. 112 : 19 Mon 22. In that case a Receiver had been appointed of the judgment-debtor''s property and a bankruptcy notice had been served upon him. The contention on behalf of the judgment-debtor was that the appointment of the Receiver acted as a stay of execution and therefore, the issue of bankruptcy notice was bad. Reference was made both in the argument in that case and in the judgment to In re Follows (1895) 2 Q.B. 521 : 65 L.J.Q.B. 15 : 15 R. 621 : 73 L.T. 222 : 2 Man 495. The contention was that as the writ of fieri facias operated as a stay of execution, therefore, likewise the appointment of a Receiver also operated as a stay. Phillimore, J. (as he then was) pointed out that although the common law rule with regard to a writ of fi. fa. operated as a stay, the property of the judgment-debtor was being seized and the judgment-debtor was placed in a position in which he would be unable to find the means to pay his debts. But the learned Judge there pointed out that the rule was confined to the writ of fi. fa. and did not operate in the case of the appointment of the Receiver. That indeed is a much stronger case than the one which we have before us. We are not concerned in India with the common law writs of execution, but we are concerned with the appointment of a Receiver which is spoken of as equitable execution.

We are not called upon in this case to decide the perhaps somewhat difficult question whether the decree-holders could execute against these very properties with regard to which the Receivers were appointed. We are only concerned with the question whether they could execute against those properties which are excluded from the operation of that consent order, and it seems to me that the obvious answer both in law and in fact is that they are so entitled. For these reasons it seems to me that the decision of the learned Judge in the Court below dismissing the objection was right and this appeal, therefore, fails and must be dismissed with costs.

Varma, J.

I agree. The appeal is directed against the order of Subordinate Judge of Dhanbad who has disallowed the objection of the appellant. The present appeal has been pressed on the ground that the decree-holders should not be allowed to go against the consent order which was passed by this Court on January 11, 1935. But a reference to the facts of the case will make it clear that the decree-holders are making no such attempt. By the consent order of this Court, two Receivers, were appointed with regard to certain properties and by that very order seven villages were excluded from its operation. The decree-holders are at present trying to execute their decree against those seven villages. No question of estoppel arises, and therefore, the order of the learned Subordinate Judge is right and I agree that the appeal should be dismissed with costs.