9911796707
TMI Blog1958 (3) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... of one Abubakar. The mortgagee aforesaid instituted a suit on the original side of the Bombay High Court, being Civil Suit No. 1543 of 1934, to enforce the said mortgage. A Receiver was appointed on October 20, 1936, during the pendency of the suit in respect of the mortgaged properties including the plot described above. The land and the buildings and the factory, have been valued by the courts below at about ₹ 70,000. The revenue payable in respect of the plot in question, at the rate of ₹ 129 per year, appears to have remained in arrears for two years, namely, 1936-37 and 1937-38. The Sub-Divisional Officer of Yeotmal, functioning as the Deputy Commissioner under the Code, sold at auction the plot in question, free of all encumbrances, on December 17, 1937, without impleading or giving notice to the Receiver who was in-charge of the estate of Bhagechand, as aforesaid. At that auction, Kanhaiyalal, the appellant, purchased the property for ₹ 270 only. The sale in his favour was confirmed on January 26, 1938, bit, it appears that the then Receiver had sent ₹ 275 by a cheque to the Sub-Divisional Officer concerned, in full payment of the arrears of land reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Single Judge, and held that the suit was not barred. Hence, this appeal. It was urged on behalf of the appellant, the auction- purchaser, who was the second defendant in the suit, and who only is interested in having the sale in question, sustained by the Court, that the sale without notice to the Receiver or without impleading him, was not void but only irregular, and secondly, that in any event, the suit was barred by the provisions of ss. 157 and 192 of the Code. The first defendant, the State Government, which was represented by Mr. Dhebar, prayed that, in any event, there should be no order for costs either in favour of or against the Government. On behalf of the plaintiff-respondent, it was urged that property in the hands of a Receiver is custodia legis, and is exempt from all judicial processes except to the extent that the Court which has appointed the Receiver, may accord permission to the Receiver or to third parties to institute proceedings in respect of the property;, that no permission of the Bombay High Court which had appointed the Receiver, having been taken for the sale of the property, the sale held without such a permission, is a nullity; that, at an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession and management of a Receiver appointed by Court under 0. 40, r. I of the Code of Civil Procedure, without the leave of that Court, are illegal in the sense that the party proceeding against the property without the leave of the Court concerned, is liable to be committed for contempt of the Court, and that the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entitled to the same. The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity. The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led attack, while, at the same time, protecting the rights of' all persons who may have claims to the property. After making these general observations, we have to examine the provisions of the Code, to find out how far that general rule of law is affected by those provisions. The Berar Land Revenue Code provides that land revenue assessed oil any land shall be a first charge on that land and on the crops, rents and profits thereof (s. 131). Section 132 makes the occupant in respect of the land in question primarily liable for the payment of the land revenue , but s. 133 provides that in case of default of payment of land revenue by the person who is 'primarily liable', the land revenue including arrears shall be recoverable from any person in possession of the land. Hence, in this case, the revenue authorities could legally call upon the Receiver to pay the arrears of land revenue, and as pointed out above, it would have been the duty of the Receiver to pay up those arrears. Under s. 135, the Receiver would be deemed to be a, I defaulter' in respect of the land revenue. Section 140 makes the statement of account, certified by the Deputy Commissioner or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed by the Court, should affair Le interest which the Bombay High Court had, by pointing the Receiver, sought to protect, if the sale favour of the appellant, stands. The mortgagee's security for the payment of the mortgage-debt, in the vent of the auction-sale being sustained, is to that -tent adversely affected without his having any voice the matter. Perhaps, if the Receiver were not there, the mortgagee may have been more vigilant and by have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on the mortgage. It has been strenuously argued on behalf of the appellant that the present suit cannot be maintained in few of the provisions of the Code, particularly, 157 and 192 which we now proceed to examine. action 157 is in these terms: 157. (1) If no application under section 156 is made within the time allowed therefor, all claims on the ground of irregularity or mistake shall be barred. (2) Nothing in sub-section (1) shall bar the institution of a suit in the civil court to set aside a sale on the ground of fraud or oil the ground that the arrear for which the property is sold was not due. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple, if a sale is attacked on the ground that the owner of the property was dead at the date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out of' his remedy under the Code by some fraudulent act, or that there was really no arrear due in respect of the property sold, or such allied grounds-suits based on grounds like these, would not be within the prohibition of s. 157(1). Section 157(2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub-s. (2) of s. 157, are covered by the provisions of the positive bar laid down by s. 157(1). There may be a tertium quid between the grounds covered by s. 157(1) and s. 157(2). It is clear that the present suit is not covered either by the terms of s. 157(1) or those of s. 157(2). As already indicated, the position emerging in the present controversy, is not covered by the express provisions of s. 157. But it has been argued on behalf of the appellant that even though the provisions of s. 157 do not cover the ground raised in the present suit, s. 192(1) of the Code, bars the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of any one of those sections. In this connection, reliance was- also placed on the provisions of ss. 32, 38 and 159 of the Code. In our opinion, those sections have no bearing on the present controversy. Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal. Section 38 prescribes the authorities to deal with revisional matters, and s. 159 conserves the power of the Deputy Commissioner to pass orders suo moto that is to say, where no application has been made under s. 155 or s. 156, or even beyond the period of thirty days, which is the prescribed period for making applications under those sections. Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue -paying Government demands in respect of the Property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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