Sher Mohammad and another vs Panchoolal Motilal

Nigam, J.C.

Civil Suit No. 119 of 1930 was filed by Sher Mohamad, Siraj Mohamad and others against Moula Bux for rendition of accounts in respect of certain joint property situated in Ajmer. On Moula Bux''s death, Khalilur Rehman and others were substituted as defendants. This suit was subsequently numbered 74 of 1942 and finally a decree for a sum of Rs. 7,231/10/6 was passed in favour of Sher Mohamad, Siraj Mohamad and others against Khalilur Rehman and others by the learned IInd Additional Sub-Judge on 31-1-1944. An execution application No. 19 of 1944, was filed in the court of the IInd Additional Sub-Judge on 12-3-1944. In execution of this decree a receiver was appointed under S. 51, Civil P.C. and he was directed to pay -/3/2 in the rupee out of the collections to the decree-holders. In the meantime on the basis of the judgment in Suit No. 74 of 1942, Amir Bux and others also obtained a decree and put in an application for execution (Execution No. 536 of 1944). In this execution application -/3/2 share in the same house (over which the receiver had been appointed) was put to sale and purchased by Panchulal at an auction sale on 10-9-1945. This sale was confirmed on 8-5-1948 and the sale certificate was issued on 7-1-1949. On 9-9-1950 Panchulal put in an application in Execution Case No. 19 of 1944 praying that the receiver be directed to substitute the name of the auction-purchaser in place of the judgment-debtors, Khalilur Rehman and others, and to pay the amount of the judgment-debtors'' share (-/3/2) to the applicant. I am told this application was made under Ss. 65 and 151, Civil P.C. This application was disposed of by the learned. IInd Additional Sub-Judge by his order, dated 24-7-1951. The learned IInd Additional Sub-Judge was of opinion that the judgment-debtors'' share had been sold and purchased by somebody else, the decree-holders that is Sher Mohamad and others were no longer entitled to get the income of the judgment-debtors'' property and that the auction purchaser was not bound by the decree as it was not a mortgage-decree. The application was therefore allowed. Against that order, an appeal was filed in the court of the District Judge and the learned District Judge by his order, dated 30-11-1951, dismissed the appeal with costs. Against that judgment and decree two of the decree-holders (Sher Mohamad and Siraj Mohamad) have come up in appeal. I have heard the learned counsel for the appellants and the learned counsel for the auction-purchaser.

The learned counsel for the respondent auction-purchaser has stated that the original application was made under Ss. 65 and 151, Civil P.C.

The learned IInd Additional Sub-Judge dealt with the application under S. 47, Civil P.C. which, in my opinion, does not relate to the facts of the case. I am of opinion that this application could not be dealt with under S. 47, Civil P.C.

It is also clear that under S. 65, Civil P.C., the auction-purchaser is the owner of the property since the date of the sale but the question for my decision is whether he gets the property subject to the attachment that is the appointment of the receiver and subject to the decree which is sought to be executed in execution application No. 19 of 1944 or free from this liability. The learned counsel for the appellant has referred me to -- '' Ponnu Chettiar Vs. Sambasiva Aiyar and Another, This ruling lays down

the effect of the order appointing the receiver was to deprive the mortgagor of his right to deal with the income, and that as the appellant had purchased only the right, title and interest of the mortgagor he was not entitled to the income which the mortgagor himself had no right to dispose of.

It was in order to sateguard the respondent''s position that the receiver was appointed. The mortgagor could not defeat the order by assigning the profits to a third party. Could he have, for instance by private transfer, assigned the income to the appellant? Of course not. What the appellant purchased was no more than the right, title and interest of the mortgagor. But the latter himself had no right to dispose of the income. The order operated to take away that right, which otherwise he would have possessed:

''The order appointing a receiver operates as an injunction to restrain the judgment-debtor from himself receiving the moneys over which the receiver is appointed''. It is then obvious that no private transferee from him could have acquired a valid right to the income and it follows that the appellant who was a purchaser of his right at a court sale stood in no better position''.

The learned counsel for the respondent has relied on -- '' AIR 1940 230 (Lahore) In my opinion this ruling will not help the learned counsel. Following the Madras ruling referred to by the learned counsel for the appellant, I am of opinion that though the auction-purchaser was entitled to get his name substituted for that of the judgment-debtors as owner of the property which he had purchased at the court sale he was not entitled to receive any profits till either the satisfaction of the decree in execution of which a receiver had been appointed or the removal of the receiver by an order of the executing court.

In that view, I accept this appeal and direct that under S. 65, Civil P.C. the auction-purchaser''s name be substituted for the original owners but the income of 13/66th share should continue to be made available for the satisfaction of the decree which had been put in execution by execution application No. 19 of 1944 till further orders by the executing court.

This appeal is allowed with costs in this Court and Rs. 13/- as costs in the two lower Courts.