B TULSIPAT RAM Vs. JAGAT NARAIN MATHUR

JUDGEMENT

(1.) This is a revision application in an execution of decree case. The decree-holder-applicant Babu Tulsipat Ram is superior proprietor of village Puraini. He obtained on 14-6-1941 a decree from the Court of the Sub-Divisional Officer Malihabad for arrears of under proprietary rent against the opposite parties, Shri Jagat Narain Mathur and Shri Tirbhawan Nath, for Rs. 1075 and future interest and costs. The decree was attempted to be realised in execution by appointment of a receiver, an order in which behalf was passed by the learned Sub Divisional Officer on 1-4-1942 in spite of the objections of the judgment-debtors that they had applied under the Encumbered Estates Act and that the decree could not be executed in view of Section 7 of that Act. The judgment-debtors succeeded in having the order set aside by the learned District Judge in appeal on 21-9-1942, and the execution application was, therefore, consigned to records.

(2.) In the Encumbered Estates Act proceedings a preliminary award was prepared on 7-12-1942 and it was made final on 10-1-1943. Thereafter the decree-holder presented another application on the execution side for appointment of a receiver, but though the Sub-Divisional Officer passed an order in his favour on 6-12-1943 the District Judge in appeal reversed it on 17-7-1941. The present revision application is against that order. It came up for hearing before our brother Kidwai, J., on 6-9-1948 but was referred to a Division Bench in view of the fact that on the point raised for decision there was an apparent difference of opinion between the Judges who constituted the Division Bench which decided the case of Hari Saran v. Har Kishan, 1941 Oudh W.N. 103, Bennett, J. being of the opinion that there could be no appointment of a receiver on account of the prohibition contained in Section 7, Sub-section (3), Encumbered Estates Act and Yorke J. being doubtful on the point.

(3.) The relevant provisions of Section 7 are contained in Sub-sections (2) and (3) which are as follows: