MAR BASSELIOS CATHOLICOS Vs. MAR POULOSE ATHANASUIS

JUDGEMENT

(1.) The sole question raised in this case relates to the jurisdiction of the Court to appoint a receiver in respect of properties decreed to be surrendered by the defendants to the plaintiffs pending consideration of the objections to execution filed pursuant to notices issued under O.21 R. 22 of the Code of Civil Procedure. The Court below held that it had jurisdiction and appointed a receiver for collection of the rents and profits of certain items of properties which are paddy fields situate within its territorial jurisdiction and outstanding with tenants under the defendants.

(2.) The contention urged on behalf of the appellant first defendant is that under S. 51 (d) of the Code the appointment of a receiver is a substantive relief, that such an appointment was prayed for in the execution petition, and that the order passed by the court below amounts to the granting of that relief. It is contended that though under Cl. (2) of O.21 R. 22 it is competent for a court to issue any process in execution without service of the notice enjoined by Cl. (1) the appointment of a receiver as a substantive relief in execution will not be the issue of such a process and that therefore the appointment made by the court below is ultra vires its powers. It is also urged on behalf of the appellant that the decree sought to be executed being of the year 1121 and three years having elapsed therefrom before the petition for execution was filed, the defendants are immune from liability from the enforcement of a claim for mesne profits in execution and that the appointment of a receiver prayed for with the object or purpose of securing the profits is beyond the scope of the proceedings in execution.

(3.) Though the learned counsel for the respondent decree holders stated that there having been an application for execution filed within one year of the decree by all the decree holders against all the judgment debtors no question of notice under O.21 R.22 arises, in view of the fact that in the petition for execution which is now pending before the court below notices under the said Order and rule were applied for and issued, this case may be dealt with on the assumption of such notice being necessary though the necessity is not conceded.