RAM Vs. HARBANS LAL

JUDGEMENT

(1.) These are two connected appeals by the judgment-debtors arising out of two orders passed by the Court below dismissing certain objections tiled by the judgment-debtors under Section 47, Civil P. C. Appeal No. 573 of 1945 is directed against an order passed on 6-9-1945, by which the Court below dismissed the objections filed by the appellants in regard to the attachment and sale of certain trees standing in what is described as the Nau Chandi grove. Subsequently the decree-holders respondents put in another application praying that the execution of the decree might be effected by attachment and sale of the proprietary rights of the judgment-debtors in the plot described as Nau Chandi plot where the Nau Chandi grove stands.

(2.) The objections filed in both these cases virtually raise the same points in regard to the sale of the property attached. We, therefore, propose to dispose of both these appeals by one and a common judgment.

(3.) It appears that Sri Ram and Triloki Prasad, the appellants in the two appeals, were adjudged insolvents on 28-1-1927. The official receiver was appointed the receiver-in-insolvency of the property of the insolvents, While insolvency proceedings were continuing, one Raghubir Saran entered into a contract with the receiver for the purchase of two shops which belonged to the insolvents for a sum of Rs. 6,000. Subsequently, in pursuance of the agreement, Raghubir Saran made a deposit of this amount in Court. Later it was discovered that the title of the insolvents to the two shops in question was defective. In consequence, the sale transaction fell through. Raghubir Saran, or his legal representatives then endeavoured to recover the deposit of the sum of Rs. 6,000 from Court. Objections were made by the receiver insolvency and Raghabir Saran or his legal representatives, were not able to get back the deposit. Thereupon a suit was filed against the receiver, substantially for recovery of the amount together with interest on that amount. This suit was eventually decreed by the High Court on 19-10-1941. Before the decision of the High Court, however, it so happened What on 16-5-1941, the Insolvency Judge passed a conditional order of discharge of the two insolvents, viz., Sri Ram and Triloki Prasad the appellants, before us. Some time later, the legal representatives of the decree holder applied for execution of the decree by sale of certain immovable property which under the conditional order of discharge dated 16-5-1941 had been directed by the Insolvency Judge to remain vested in the official receiver for the benefit of the creditors. It may be mentioned in passing that the immovable property ordered by the Insolvency Judge to remain vested in the official receiver, even after the date of the conditional order of discharge, included the grove at Nau Chandi ground which has been mentioned above. In the execution Court it appears, the decree-holders thought it necessary to apply to the Court for impleading the two insolvents, Sri Ram and Triloki Prasad, as parties to the proceedings. This was done. Objections were filed to the execution of the decree by the two insolvents, i.e., the two appellants, as well as by the official receiver. The objections filed by the two insolvents were to this effect : (i) that they could not be made parties to the decree as judgment-debtors at the stage of execution and (ii) that in execution of a decree like the present to which they were not parties their property could not be attached and sold. On behalf of the official receiver the objection filed was to this effect. The land and the grove (i.e., Nau Chandi) bad already been held by the Collector in other execution proceedings as coming within the description of "protected land" and they were thus not saleable in execution of the present decree. We may add here that out of the amount due under the decree a sum of Rs. 6,000 which was in deposit in the insolvency Court has already been realised by the decree-holders. The balance, which has yet to be realised mainly consists of the interest and costs of the suit awarded eventually by the High Court: