SANKARA PURSA Vs. GOVINDA BHATTA AND ORS.

JUDGEMENT

(1.) THIS second appeal is preferred against an order of the District judge of South Kanara setting aside an execution sale under Section 47, Civil: Procedure Code, on the application of the judgment -debtors.

(2.) THE facts necessary to be stated for the purpose of the appeal are these. On with May, 1931, the property forming the subject -matter of this appeal was mortgaged by its owners to one Suppi Hengsu who died leaving 9 children governed by the Aliyasanthana law. Under a family karar (Ex. D -1), dated 23rd September, 1931, the mortgage debt along with some other property was kept apart for the seven sons of Suppi Hengsu and two of them namely, Aitha Purusha and Sankara Purusha were appointed adaltedars (managers) on behalf of all the seven sons with power to realise the mortgage debt. These two individuals filed a suit on the mortgage, O.S. No. 84 of 1934, on the file of the Court of the Subordinate Judge of South Kanara and obtained a final decree for sale on 7th September, 1935. On the application of the two decree -holders, one of them, Aitha Purusha, was appointed a receiver of the mortgaged properties., and he took possession of the same on 12th February, 1936. The receiver has remained in possession ever since. E.P. No. 269 of 1940 was filed by the two decree -holders for sale of the hypotheca in execution of the mortgage decree. Notice of the sale proclamation went to the judgment - -debtors and, apparently on their objection, the decree -holders were directed by an order made on 35th November, 1941, to deduct a sum of Rs. 359 -7 -3 from the amount claimed by them, the said sum representing the rents and profits of the mortgaged properties received by one of the two decree -holders who was in possession as receiver. Leave to bid at the Court sale and set -off the decree amount towards the price, was granted to the decree -holders under Order 21, Rule 72, Civil Procedure Code, after notice to the judgment -debtors. The mortgaged property was purchased by the decree -holders on 25th November, 1941, for a sum of Rs. 2,020 and this sum was set -off against the amount of the decree. The judgment -debtors filed an application under Section 47 and Order 21, Rule 90, Civil Procedure Code, impugning the Court sale on various grounds, of which the only one now material, is that, the purchase by the two decree -holders one of whom was a receiver, without obtaining the express leave of the Court in that behalf, was liable to be set aside on that very ground. The Courts below set aside the sale relying on the authority of a decision of this Court in Subramanyam v. : (1935)68MLJ597 .

(3.) IT may be stated at the outset that though the mortgage debt was a family asset, the two decree -holders alone were authorised by the karar to which reference has already been made, to realise the debt. On the joint application of both the decree -holders, one of them, the elder of the two brothers, was appointed receiver. The receiver was no doubt appointed in the interests of the mortgagees and it is a significant circumstance that he never paid into Court anything out of the collections but retained them in his hands presumably in reduction of the mortgage debt. It was for this reason that the Court directed the two decree -holders to deduct a sum of Rs. 359 -7 -3 from the amount shown as due to them in the sale proclamation. It is therefore clear that both the decree -holders were jointly interested in the realisation of the mortgage debt and they appropriated to themselves the realisations from the property though the person who realised the moneys was the receiver. It is true that the receiver was the only person to whom the Court looked for the proper management of the property as its own officer, but this does not make any difference in the application of the rule disabling receivers from purchasing the property of which they are in charge without the express leave of the Court, to the present case.