HARNANDRAI BADRIDAS Vs. DEBIDUTT BHAGWATI PRASAD

JUDGEMENT

(1.) This appeal arises out of an order of Mr. Justice Ray dismissing the Appellant's application for setting aside the sale of premises Nos. 99 and 128/129. Cotton Street, Calcutta, held by a Receiver appointed in suit No. 748 of 1956. On June 7, 1956 the Respondent obtained a summary judgment against the Appellant and for the realisation of its dues under the summary judgment the Respondent levied attachment of premises Nos. 99 and 128/129, Cotton Street. On July 30, 1957 the Respondent applied for adjudication of Durga Prosad Goenka, one of the partners of the Appellant firm. In January 1958, Mr. Justice G.K. Mitter appointed Mr. Tibrewal a Receiver to sell premises No. 09 and 128/129, Cotton Street. On April 3, 1958 Mr. Justice Bachawat passed an order by consent appointing Mr. Tibrewal a Receiver of the identical premises in execution of the decree in suit No. 748 of 1956. In the minutes of this order no authority was given to the Receiver to sell the premises. On April 26, 1958 the Receiver sold premises No. 99, Cotton Street, for a sum of Rs. 32,000 and premises No. 128, Cotton Street, for a sum of Rs. 52,000. It will appear that the two premises were sold by the Receiver Mr. Tibrewal in the insolvency jurisdiction as well as in execution of the decree obtained by the Respondent in money suit No. 748 of 1956. On or about May 5, 1958 the Appellant made an application to set aside the sale held in the insolvency jurisdiction. This application was allowed by Mr. Justice Ray on August 5, 1959. By this order Mr. Justice Ray set aside the appointment of Mr. Tibrewal as the Receiver in insolvency jurisdiction and also set aside the sale held by him in that jurisdiction of premises No. 99 and 128/129 Cotton Street; but, that order was made "without prejudice to the sale held in execution proceedings in suit No. 748 of 1956 of this Court" and the Receiver was directed to hold the sale proceeds of the said premises subject to any direction that might be given by the executing court. I have already said that the minutes of the order passed by Mr. Justice Bachawat on April 3, 1958 did not invest the Receiver Mr. Tibrewal with authority to sell the premises although in the petition for appointment of Mr. Tibrewal as Receiver there was a prayer to that effect and although the attorney for the Appellant put his signature to that petition in token of his consent to that prayer. The mistake was. however, not detected till the 7th May, 1959 when on the Respondent's petition to speak to the minutes Mr. Justice Bachawat corrected the minutes of the order, dated April 3, 1958, in the following terms:

(2.) Mr. Meyer appearing in support of the appeal has raised five points before us:

(3.) The first point is entirely without substance. The declaration of nullity of the sale held in insolvency jurisdiction does not and cannot entail the consequence that the sale in the execution proceeding, must also be declared to be a nullity. I have already said that the sale in insolvency jurisdiction was only of the share of Durga Prosad Goenka, who is one of the, partners of the Appellant firm, whereas the sale in the execution proceeding is of the right, title and interest of the firm itself. Consequently, the declaration of nullity of the sale held in insolvency jurisdiction cannot affect the validity of the sale held in execution proceeding. [Moreover, in setting aside the sale in insolvency jurisdiction Mr. Justice Ray expressly stated that that order was made without prejudice to the sale in the execution proceeding and the Receiver was directed to hold the sale proceeds subject to any order that might be passed by the executing court. The first point raised by the Appellant must accordingly be overruled.