MISHRILAL ONKARLAL BAPNA Vs. BHUPRAJ NATHULAL NALVAYA

JUDGEMENT

(1.) THE facts and circumstances giving rise to this revision petition are that the petitioner Mishrilal effected two mortgages on certain properties belonging to him and situated in Mandsaur in favour of the non-applicant's father Nahulal. The total amount secured by these mortgages was Rs. 1,25,000/ -. On 13th November 1951 the mortgagee instituted a suit against Mishrilal and his sons in the court of the district judge of Mandsaur to enforce the mortgages. In that suit a compromise decree was passed on 9th April 1952. By that decree the defendants became severally and jointly liable to pay to the mortgagee Nathulal Rs. 137437/- together with interest on Rs. 125,000/- at the rate; of ten annas per cent per month from 7th October 1951 till realisation. The decretal amount was to be paid in certain instalments. The decree further provided that till the repayment of the decretal amount, the property mortgaged with nathulal "shall remain attached as security for the payment of the amount; that the defendant mortgagors shall have no right to transfer, dispose of or deal in any way with the property; and that in default of any term of the compromise or payment of any instalment the whole amount then due shall be payable a once and recoverable from the defendant mortgagors by the sale of the property made security for the debt. " it appears that the judgment debtors made a default in the payment of the instalments. Thereupon the mortgagee filed an application for execution of the decree praying for the sale of the property held as security for the payment of the decretal amount. At the instance of the mortgagee, a receiver of the property, the sale of which the mortgagee sought in execution of the decree, was appointed for the collection of rents and profits of the property.

(2.) ON 25th March 1957 the petitioner Mishrilal filed an insolvency petition in the court of the district judge of Indore. On the insolvency petition being admitted, the interim receiver appointed in the insolvency proceedings presented an application under Section 52 of the Provincial Insolvency Act 1920 before the Additional district Judge of Mand-saur for delivery of possession of tne property which mishrilal had mortgaged with Nathulal and which was about to be sold in execution of the compromise decree passed by the district judge on 9th April 1952. The additional district judge of Mandsaur rejected this application of the interim receiver. It is against this order that the present revision peiition is directed.

(3.) MR. Chafekar, learned counsel for the petitioners, argued that the compromise decree, which was passed on 9th April 1952 in favour of Nathulal, did not make him a secured creditor; that the decree continued the attachment of certain properties which had been previously mortgaged with Nathulal; that a receiver of that property was also appointed in execution proceedings of the compromise decree; and that, therefore, the property being in possession of the executing court, it had no other alternative but to direct the delivery of the property to the interim receiver when he made an application under Section 52 of the Insolvency act and when the conditions laid down by that section had been fulfilled. It was also said that the question whether the opponent was or was not a secured creditor and whether the property could be delivered under Section 52 could be determined by the insolvency court alone and not by the executing court.