N ABDUL RAHIM Vs. LINGAPPA VAIJAPPA ANGOL

JUDGEMENT

(1.) THE property with which this appeal is concerned comprises two houses in Belgaum which belonged to one Banghi Hayat Badasha. He died in June, 1929, and in 1930 defendant No.1 filed suit No.434 of 1930 to recover the debt due from him. On May 7, 1931, when that suit was pending in the Belgaum Court, one of the heirs of Banghi Hayat filed an administration suit in the High Court at Madras where he had left some property. In his Suit No.434 of 1930 defendant No.1 obtained a money decree on November 3, 1931. In the administration suit the plaintiff Herekar was appointee receiver of the Belgaum property about the end of 1931. On January 31 1932, defendant No.1 filed darkhast No.663 of 1931 to execute his money decree and got the Belgaum property attached. He was not then a party to the administration suit. THE Madras High Court passed a preliminary decree in that suit on March 11, 1932. On May 9, 1933, Herekar was authorised to take charge of the Belgaum property and manage it, exhibit33. In defendant No. l's darkhast the Belgaum property was proclaimed for sale, but, before the auction was held, the receiver Herekar made an application to the executing Court on September 21, 1933, requesting that, as he had been appointed receiver of the property, he should be made a party to the darkhast and that the auction sale should be stayed. It is not clear from the record whether his application was granted and he was impleaded in the darkhast, but the sale was postponed at his instance from time to time. He then applied to the Madras High Court and got defendant No.1 impleaded as a party to the preliminary decree in the administration suit and had: him served with an interim injunction on January 19, 1934, restraining him, from bringing the Belgaum property to sale in execution of his money decree. THE interim injunction was made absolute on March 23, 1934. THE Belgaum Court was apprised of this by the receiver and the sale was further postponed from time to time. THE darkhast was thus kept hanging for over three years and then the parties were called upon to state why it should be kept pending any longer. On November 11, 1937, defendant No.1 put in a purshis, exhibit 31, to the following effect : THE Madras High Court has passed orders restraining the plaintiff decree-holder from proceeding with the execution of the decree obtained against the defendant in regular Suit No.434 of 1930. THE plaintiff decree-holder has requested his advocate at Madras to move the Court there for permission to go on with the sale in this darkhast and deposit the sale proceeds in this Court until the proceedings in the Madras High Court are finally disposed of. In the meanwhile if this darkhast is disposed of, the plaintiff will be put to heavy loss as the attached property will be free from attachment and would be disposed of to the prejudice of the interests of the decree-holder.

(2.) IN spite of this Purshis the Court ordered execution to proceed. IN due course the Belgaum property was sold by auction and was purchased by defendant No.2 for Rs. 1,120 on January 9, 1938. On February 19, 1938, the receiver Herekar made an application to the executing Court to set aside the sale for various reasons set out in exhibit40. It was registered as Miscellaneous Application No.34 of 1938, but was rejected with costs as being time barred, on February 21, 1938. The sale was then confirmed on March 25, 1938. The sale proceeds were paid out to defendant No.1 on his furnishing security. The receiver Herekar then made an application (No.1888 of 1938) to the Madras High Court asking for directions and requesting that the auction sale should be set aside and necessary steps taken against defendant No.1 for disobeying the orders of the Court. The High Court merely directed defendant No.1 to pay the sale proceeds, Rs. 1,120, into Court, but did not set aside the sale or direct any further action to be taken against defendant No.1. On June 4, 1938 defendant No.2 applied to the executing Court that he should be put into possession of the Belgaum property which he had purchased at the auction. Two days thereafter, the receiver Herekar filed this suit without taking the previous permission of the Madras High 'Court to do so. After filing this suit he moved the Madras High Court either to permit him to continue the suit or to direct him, to give notice to defendant No.1 to show cause why he should not be proceeded against for contempt of Court. That application was rejected on October 31, 1939, with a remark that the receiver might proceed with the suit if he had proper grounds to do so. The suit was dismissed, and when the appeal to the District, Court was pending, Herekar was removed from the receivership, and N. Abdul Rahim, who was appointed a receiver in his place, has presented this second appeal.

(3.) IN the present case the Madras High Court, at the instance of the receiver, added defendant No.1 as a party to the preliminary decree in the administration suit and served an injunction upon him not to proceed with his darkhast in the Belgaum Court. The receiver was not a party to that darkhast and his application to be made a party to the darkhast proceedings does not appear to have been granted. But, as held in Hanmant v. Jainapur (1938) 40 Bom. L.R. 932 he was not a necessary party and the omission to join him as a party does not vitiate the darkhast proceedings. The receiver, however, did intervene in the darkhast and got it postponed from time to time and in the meantime he succeeded in getting an injunction served on the decree-holder. But unfortunately the object of that injunction was frustrated by the irregularity of the executing Court at Belgaum. After putting off the darkhast from time to time for three years, if it thought it not proper to keep it pending for an indefinite period, it should have called upon the decree-holder to proceed with the darkhast. Obviously he could not do so as he had been restrained by the injunction of the Madras High Court, and if he said so, the darkhast should have been dismissed under Order XXI, Rule 57 of the Civil Procedure Code. Mr. Thakor urges that the executing Court had no power to proceed with the darkhast and that the sale held in contravention of that rule is a nullity. But the rule does not refer to the inability of the decree-holder to go on with the darkhast, but the inability of the Court to proceed further with the application for execution by reason of his default. IN this case defendant No.1 was called upon to state why the darkhast should be kept pending and he stated in his purshis, exhibit 31, that he had been restrained by the decree-holder from proceeding with the execution of the decree and that if the darkhast be dismissed he would be put to a heavy loss. Mr. Thakor urges that this amounted to a default on the part of the decree-holder, according to the ruling in Baba v. Kisan. (1937) 39 Bom. L.R. 1105 IN that case Divatia J. observed that the word "default" in Order XXI, Rule 57, of the Civil Procedure Code, in so far as it applies to the decree-holder, means default not merely in the sense of non-appearance or non-payment of process fees, etc., but includes the case of non-prosecution as well. But the default must be such as would render the executing Court unable to proceed with the execution. IN fact the Belgaum Court did not find itself unable to proceed with the darkhast. IN spite of the purshis, exhibit 31, it ordered the darkhast to proceed and at no stage of the proceedings did it find itself unable to go on. The decree-holder presumably paid the necessary process fees and the tom-tom fees and the sale was eventually held. Even a decree-holder restrained by an injunction may choose to be rash enough to flout the order of injunction and face the consequences. IN that case he might be hauled up for contempt of Court or proceeded against under Order XXXIX, Rule 2, Sub-rule (3), of the Code of Civil Procedure. But the executing Court will not be bound to dismiss the darkhast under Order XXI, Rule 57, and the sale held in due course would not be a nullity merely because the decree-holder had been restrained by an injunction from proceeding with the darkhast.