NARESH NATH MUKHERJEE Vs. ECONOMIC ELECTROPLATING WORKS

JUDGEMENT

(1.) This revisional application under Section 115 of the Code of Civil Procedure is directed against an order of Shri S. Chatterjee, Judge, Court of Small Causes, Calcutta, dismissing an application for bringing the Receiver on the record of the execution proceedings. The Petitioner as Plaintiff instituted the suit against the Economic Electroplating Works carrying on business at 12/1A Lindsay Street, Calcutta, on the allegation that the Defendant opposite party was a habitual defaulter and that notice to quit had been duly served on the opposite party Defendant. This suit was filed on July 3, 1951 and was numbered Suit No. 1648 of 1951. The Defendant appeared and filed a written statement on August 10, 1951 and the written statement was signed for the Economic Electroplating Works by one of the partners, K.N. Sen, who signed as the managing proprietor. A Receiver had been appointed for the business of the Defendant by the Original Side of the High Court in Suit No. 1948 of 1941, the appointment having been made on January 19, 1942. It was not stated in the written statement filed by the Defendant, the Economic Electroplating Works, that there was a Receiver for the business. In that suit, viz., Ejectment Suit No. 1648 of 1951 there was an order passed under Section 14(4) of the West Bengal Premises Rent Control Act, 1950, for payment of arrears of rent and current rent, but the arrears of rent was not deposited and, thereafter, the defence was struck out and the suit was decreed ex parte on November 13, 1951. When the Petitioner as a decree-holder tried to obtain possession of the premises in question he was resisted by an agent of the Receiver, the Receiver being opposite party No. 2, Mr. K.C. Mukherjee, Bar-at-Law. Thereupon, the Petitioner as decree-holder filed an application for bringing the Receiver on the record, that is, for adding him as party in the execution case. In the order-sheet of the lower court it is stated in the beginning that the application was for substitution of the Receiver for the original judgment-debtor, but towards the end there is a reference to bringing the Receiver on record and not to substitution. The original application does not appear to be on the record. This application was rejected by the learned Judge mainly on the ground that no notice under Section 80 of the Code of Civil Procedure was served on him before the ejectment suit was filed in 1951. Against that decision the Plaintiff decree-holder has filed this revisional application.

(2.) On behalf of the Petitioner, Mr. Basu has argued that the learned Judge was wrong in holding that there could be no order for substitution of the Receiver or for addition of the Receiver in the execution case because of the non-service of the notice under Section 80 of the Code of Civil Procedure. It is difficult to understand how the question of service of notice under Section 80 can at all arise in connection with the application, because such notices have to be served in the necessary cases before the institution of a suit and notice under Section 80 has nothing to do with the addition of a new party in an execution proceeding. Further, it would not be necessary to serve notice under Section 80 on the Receiver even if he was sought to be made a party in the ejectment suit itself. The learned Judge relied on the ruling in the case of Jagadish Chandra Deo Dhabal Deb v. Debendra Prosad Bagchi, 1930 ILR(Cal) 850. That, however, was a suit against the Receiver for accounts, that is, for something that the Receiver had done in his official capacity as a Receiver. It has been held repeatedly that when the suit is for possession only against a Receiver no notice under Section 80 of the Code of Civil Procedure is necessary. In this connection reference may be made to the ruling in the case of Bhuban Mohini Debi v. Biraj Mohan Ghosh, 1939 44 CalWN 74, where it was held as follows:

(3.) This decision is based on two Privy Council rulings, viz., Bhagchand Dagdusa Gujrathi v. The Secretary of State for India in Council,1927 32 CalWN 61 (P.C.), and Rebati Mohan Das v. Jateendra Mohan Ghosh,1934 61 ILR(Cal) 470. I must clearly hold, therefore, that no notice on the Receiver would be necessary, even if we were concerned with the question of the Receiver being made a party in the suit. Thus, the main ground on which the learned Judge disposed of the application must be held to be without substance.