The Bank and Behar Ltd. vs Hari Kishun Prasad Jhun-Jhunwala and Others

Dhavle, J.—This is an appeal by the holder of a decree, which is described as a simple mortgage decree, and was, we understand, passed on compromise and contains some peculiar terms. The amount of the decree exceeded Rs. 19,000 and in execution proceedings the three milkiat properties that had been mortgaged were valued. The properties were then put up to sale twice, but sufficient bids were not forthcoming and the Bihar Money-Lenders'' Act having meanwhile come into force, the decree-holder refused to forgo so much of the decretal amount as was equal to the difference between the price fixed for the properties and the amount bid. The decree-holder afterwards started a fresh execution case and prayed for the appointment of a receiver for the purpose of selling the properties by private treaty to such persons as may offer the highest price. This application has been dismissed by the learned Subordinate Judge and the deoree-holder appeals.

It has been contended on behalf of the appellant that execution by appointing a receiver is among the rights of a decree-holder u/s 51(d), Civil P.C., and it is pointed out that this is one of the modes in which the assistance of the Court may be obtained by a decree-holder, as specified in Order 21, Rule 11 (2)(i)(4). But Section 51 itself provides that execution of a decree by appointing a receiver (like the other modes there specified) may be allowed on the application of the decree-holder "subject to such conditions and limitations as may be prescribed," and as "prescribed" means prescribed by the rules in Schedule 1, we come to Order 40, which deals with the appointment of receivers. Rule 1 of this order begins: "Where it appears to the Court to be just and convenient, the Court may by an order appoint a receiver of any property." Relief by appointing a receiver is thus not a matter of course and can only be given where it appears to be just and convenient to do so. That is to say, a proper case must be made out as Rankin C.J. put it in Pramathanath Malia v. H.V. Low & Co AIR 1930 Cal. 502 , for the exercise of the Court''s discretion to appoint a receiver by way of execution, as by showing the existence of an impediment which prevents the decree-holder from obtaining satisfaction by an ordinary execution sale: see also Hemendra Nath Roy Chowdhury and Another Vs. Prokash Chandra Ghosh and Others, . The ground upon which the appellant seeks the appointment of a receiver for the sale of the properties is that bidders cannot be found for the value that has been fixed by the Court. He contends that the provisions of Section 14, Money-Lenders'' Act, have imposed an impediment in the way of his realising the decretal amount. But the valuation fixed u/s 13 of the Act is a valuation that is a judicial decision binding on the decree-holder no less than on the other side; and it would be a clear evasion of the law to treat this valuation as an impediment to an ordinary execution sale by the Court and let the decree-holder have a receiver for the sale of the properties by private treaty. In my opinion, it is perfectly clear that the appellant is not entitled to the appointment of a receiver for the purpose on the ground so frankly put forward by him. The order of the lower Court is right, and I would dismiss the appeal with costs.

Harries, C.J.

I agree.