KISHORCHAND Vs. KARNATAKA BANK LTD

JUDGEMENT

(1.) This is a revision by the receiver appointed by the Court of the Civil Judge, Mangalore, in Execution Case No. 8.2/1977. It is directed against the legality and correctness of the order dated 13-9-1985 passed by the learned Civil Judge, Mangalore, in the said execution petition. Before stating the peculiar facts and circumstances leading to the present revision petition, it would be useful to set-out the order itself in toto : "13-9-85; Petitioner : Shri P. V. Shetty present. I.A. No. IV Section 151 C.P.C. A.L.S. Present. Shri P.V.S. Present Heard. As submitted by them. F.S. Recorded Receiver discharged. Deliver the properties in favour of the Jdr. by 30-9-85". The receiver who is none other than the son of the judgment debtor in the above mentioned execution petition is aggrieved by that portion of the above order by which properties are to be delivered to the judgment-debtor. He has no quarrel or no grievance at all in respect of the other parts of the order. On 16-9-1985 there appears to have been some direction by the Court to break open the lock and render police help to give effect to its order by 30-9-1985 with which this Court in this case need not seriously concern itself.

(2.) The peculiar facts leading to this revision petition under Section 115 of the C.P.C. may be stated and they are as follows : The Karnataka Bank Ltd., obtained a decree against one Monappa for over Rs. 4 lakhs and sought its execution on more than one occasion, the last one being Execution Case No. 82/1977. The Bank made an application which was numbered as I.A. No. I. In that application it prayed that the decree-holder be appointed as receiver of Schedule A and B properties for the purpose mentioned in the petition. Apparently that purpose was to take over Schedule A and B properties in order to repay for itself the decretal amount together with the interest etc. The judgment debtor had no objection for the decree-holder-Bank being appointed as the receiver. Accordingly, I.A. No. I came to be allowed and the decree-holder-Bank was appointed receiver. When the receiver went to take possession of schedule A and B properties it was resisted by the present revision petitioner in this Court as be was in possession of those properties. That resistance was reported to the Court by the Bank, the receiver appointed under I.A. No. I. The Bank further prayed that the objector be notified and the objection removed. That is apparent from the order made on 22-6-1977 i.e., nearly two months after the appointment of the Bank as the receiver. The objector also entered appearance and tiled objections to the prayer. At that point of time there appears to have been some sort of a compromise between the decree holder, the judgment-debtor and the objector, the son of the judgment-debtor. As a result of that compromise on 16-7-1977 the execution petition came to be allowed in terms of the joint memo tiled by the decree-holder, the judgment-debtor and the objector. The operative portion of the order is as follows : "The Execution Petition is allowed and B. Kishore Chand, son of respondent-judgment-debtor B. Monappa is appointed receiver to decree schedule A and B properties in terms of the joint memo. The Execution Petition is directed to be closed giving liberty to the parties as stated above. The petitioner-decree-holder shall get the costs of this E.P. from out of the collections of the receiver. Closed Execution Proceedings. Sd/- Venkatesh Patil, 16-7-77 I Additional Civil Judge." The memo itself indicated that the objector should be appointed receiver with the sole power of management of the schedule A and B properties. He was even permitted to sell any part of the B schedule properties with the permission of the Court. He was, however, restricted from alienating any of the properties otherwise than the specific reservation made. He was directed to pay Rs. 5,000/- per mensum to the decree-holder-Bank and Rs. 1250/- to the judgment-debtor.

(3.) Thus, the obstructor continued in possession, control and management of the factories in question as receiver with effect from the date of the order. Undoubtedly, in the papers furnished by the revision petitioner, it is seen that there is a deed of partnership entered into between the receiver, his father, the judgment-debtor and his brother by which, some arrangement outside the terms of the order on I. A. No. III has been entered into. Particular attention was drawn specifically by the Learned Counsel for the judgment-debtor who is one of the respondents in this case to the fact that in the preamble to the partnership deed it is recited that the judgment-debtor, the father of the petitioner, is the sole owner of the two mills in question. I will refer to Learned Counsel's argument founded on this undisputed fact. But now to continue narration of events, the petitioner as receiver discharged in full the debt due to the decree holder Bank. It was in that circumstance that on 13-9-1985 the decree-holder and the judgment-debtor reported full satisfaction of the decree and sought the order to that effect. As already extracted the order went beyond merely entering full satisfaction discharging the receiver.