MOHAMMAD ISHAQ Vs. RAM DAS AND OTHERS

JUDGEMENT

(1.) THIS is a second appeal by the decree holder from an order passed by the executing court under Section 52 of the Provincial Insolvency Act delivering possession over a house, which had been attached by it in execution of a decree obtained by the Appellant against the Respondents, to an interim receiver appointed Under Section 20 of the Act. The Appellant obtained a decree and in execution of it got the house in dispute attached on 1 -9 -1954. The Respondents applied on 21 -5 -1954 for adjudication as insolvents and an interim receiver was appointed Under Section 20 of the Provincial Insolvency Act on 18 -9 -1954. The interim receiver applied to the executing court Under Section 52 of the Insolvency act for being put in possession of the attached house, and the executing court order possession over it to be "vested" in him. What it seems to have meant was that the possession be delivered to him. It also stayed further execution proceedings. The Appellant filed an appeal from the order. The Civil Judge dismissed the appeal on a preliminary objection that the appeal did not lie Under Section 47, Code of Civil Procedure and the order under appeal delivering possession to him was not an order regarding execution, discharge or satisfaction of a decree. The Appellant had maintained that the interim receiver was a representative of the judgment debtors and Section 47 applied, but the appellate court held that the interim receiver was not a representative of the judgment -debtors and dismissed the appeal on the preliminary objection. Hence this second appeal which has been referred by V.D. Bhargava, J. to a Bench because of the importance of the question whether an order passed Under Section 52 delivering possession of an attached property to an interim receiver is appealable Under Section 47, Code of Civil Procedure or not. We have heard Sri Saran Behari Lal Srivastava, nobody appears on behalf of the Respondents judgment -debtors. We are satisfied that the view taken by the lower appellate court is correct.

(2.) ADMITTEDLY the only question before the lower appellate court was whether the order appealed from, passed by the executing court, was an order governed by S. 47, Code of Civil Procedure or not. It would be so governed if it related to a question arising between the Appellant, as decree -holder and the judgment -debtors through the interim receiver as their representative and if the question was in respect of the execution, discharge or satisfaction of the decree.

(3.) WE respectfully agree with the view expressed in these decisions. It was contended before us that the interim receiver becomes a representative of the judgment debtors because their property vests in him. We find that neither does the property vest in him nor does he become a representative merely because of the vesting, if any. As regards vesting, it is by virtue of S. 56(5) of the insolvency Act only that the property is said to vest in him. In this case possession over the attached property was delivered by the executing court to the interim receiver Under Section 52; Section 52 requires possession to be delivered to the interim receiver and does not lay down that the property vests in him. A person may be in possession of a property without its vesting in him; so possession could be delivered Under Section 52 to the interim receiver without the property vesting in him. under Section 56(1) a property vests in a receiver appointed by the court at the time of the order of adjudication or at anytime afterwards. Sub S. (5) of S. 56 provides that the provisions of this section shall apply, so far as may be to an interim receiver appointed Under Section 20. This has, in our opinion, reference only to the provisions of sub/S. (2) and (4). They are the provisions that can be said to be applicable to receivers. The provisions contained in Sub -section (1) to the effect that when a receiver is appointed at the time of the order of adjudication, or subsequently, the property of the insolvent shall vest in him, can hardly be said to be a provision "applicable to a receiver," and we doubt if sub Section (5) has any reference to this provision. In any case, even if we were to read for the words "such receiver" the words "interim receiver," the property cannot vest in the interim receiver before the order of adjudication. We cannot ignore the words "at the time of the order of adjudication, or at any time afterwards" occurring in Sub -section (1). They are to be read as much with reference to an interim receiver as with reference to a receiver. If the property will not vest in a receiver prior to the order of adjudication we do not under stand how it can vest in an interim receiver prior to the order of adjudication. Admittedly no order of adjudication was passed against the Respondents before the order under appeal was passed by the executing court. We, therefore, hold that the attached house, though possession over it was delivered to the interim receiver, did not vest in him. The Appellant claims that the interim receiver became a representative of the Respondent judgment debtors because of the vesting of the property in him, since there was no vesting at all, he did not became their representative. In Pulgaon Cotton Mills v. Gulabai, AIR 1953 Nag. 345 there is just a dictum, not supported by any authority other than Sastri's Provincial Insolvency Act, 1937 pages 162 and 348, to the effect that on the appointment of an interim receiver the insolvent's property vests in him. We respectfully disagree with the view that the property delivered to the interim receiver by the executing court Under Section 52 of the Insolvency Act can be said to vest in him.