LAWS(MAD)-1958-5-3

KRISHNASWAMI NAICKER Vs. NARANAPPA NAICKER

Decided On May 01, 1958
KRISHNASWAMI NAICKER Appellant
V/S
NARANAPPA NAICKER Respondents

JUDGEMENT

(1.) THIS second appeal is against the Order of the learned Subordinate Judge of ramanathapuram at Madurai in A. S. No. 59 of 1956.

(2.) THE main question of law that arises for consideration in this appeal is whether execution could be allowed in favour of the legal representatives of a deceased receiver and whether a receiver could have legal representatives to succeed him. To appreciate the point for decision it may be necessary to mention a few relevant facts in brief. On 9-8-1923 the father of the appellant before me executed a mortgage in favour of one Solayappa Naicker for Rs. 200. It was a simple mortgage. The mortgagee, Solayappa, was indebted to another solayappa on a promissory note. The promisee P. Solayappa, filed a suit on the promissory note and obtained a decree. The suit filed by the said P. Solayappa was O. S. No, 25 of 1935. On 10-8-1936 the decree-holder P. Solayyappa in the promissory note suit O. S. No. 25 of 1935 was appointed receiver to collect the debts due to his judgment-debtor. Among the debts to be collected by the said decree-holder, P. Solayyappa, was the mortgage debt due by the father of the present appellant under the mortgage executed on 9-8-1923. In order to collect the said debts under the authority given to him as receiver in O. S. No. 25 of 1935, the said receiver P, Solayappan filed O. S. No. 338 of 1936 on the file of the District Mun-sif's Court, Sattur, to enforce the mortgage and bring the property to sale. The preliminary decree in the mortgage suit filed by the receiver was passed on 9-12-1936. and the final decree on 22-8-,1940. This receiver, Solayappa, died in February 1941. Thereafter on 18-6-1943 one venkitaswamy Naicker, the son of Solayappa, the receiver, filed an execution petition to execute the mortgage decree and for sale of the mortgage property. On 8-10-1943 the execution petition was rejected on the ground that this venkitaswamy Naicker had no locus standi to prefer the execution petition. Subsequently, on 2-7-1946, another execution petition was filed by one naranappa Naicker, the brother of Venkitaswami Naicker the latter having apparently died. This execution petition was also rejected without notice to the judgment-debtor on 1-11-1946. A further execution petition was filed by the said Naranappa Naicker on 22-101949, and it was also rejected on 24-2-1950 for the non-production of the order appointing Naranappa, a receiver in the suit O. S. No. 25 of 1935, in place of the previous receiver, who had died long ago. Another execution petition E. P. No. 134 of 1953 out of which the present appeal has arisen, in the suit, O. S, No. 338 of 1936, on the file of the District Munsif's Court at Sattur, was filed on 22-8-1952 by naranappa for two reliefs, viz. , (1) to declare the second defendant a major, and (2) to direct the sale of the mortgage property. It transpired on 12-1-1953 Naranappa obtained an order in his favour appointing him as a receiver and produced the same in court. Objection was taken by the second defendant that the execution petition dated 22-8-1952 was barred by limitation. The second defendant, the appellant before me, preferred an appeal before the learned Subordinate Judge of Ramanathapuram at Madurai. His contention was that without an order of appointment neither Venkitaswami, the previous applicant, nor Naranappa the subsequent applicant could maintain any execution petition and that' the three petitions filed prior to E. P. No. 134 of 1953 were alt petitions not in accordance with law and that they could not have the effect of saving limitation for the execution petition filed on 22-8-1952.-The further contention raised was that the appointment of P. Solayappa as receiver did not have the effect of an assignment of the mortgage debt in favour of the receiver so appointed. The third contention raised was that the appointment of Naranappa as receiver on 12-1-1953 cannot validate the execution petitions filed by him earlier. The learned subordinate Judge however overruled the objections raised by the appellant before him and allowed the execution to proceed on the ground that the petition was in time and that it was not barred by limitation. In consequence he dismissed the appeal. It is against this order dated 20-6-1956 that the 2nd defendant has preferred this civil miscellaneous second appeal.

(3.) MR. Ratnam appearing on behalf of the appellant has invited my attention to several passages in Kerr on Receiver, 12th Edn. (1952 ). The nature of the office of the Receiver is described by the learned author on page 1 in the following terms;