SAILESHWAR LAKHAIYAR Vs. KANTI KUMAR SINHA

JUDGEMENT

(1.) In this case the petitioner obtained a money decree against the opposite party, Kanti Kumar Sinha, and put the same in execution in Execution Case No. 294 of 1954 in the 1st Court of the Munsif of Patna, praying for attachment of zamindari interest including some bakasht lands appertaining to the zamindari of the opposite party. It appears that the zamindari interest and the bakasht lands were attached and sold in execution of the said decree on the 12th July, 1957, but the opposite party took an objection that the zamindari interest had already vested and so the bakasht lands could not be sold in execution of the decree. The objection was allowed in the executing court in Miscellaneous Case No. 256 of 1957 and the sale was set aside. Thereafter the petitioner made an amendment in the execution petition praying for the attachment of the bakasht lands which were settled with the opposite party by virtue of Section 6 of the Bihar Land Reforms Act. The Judgment-debtor opposite party objected on the ground that the decision in the previous miscellaneous case operated as res judicata and the amendment sought for by the petitioner could not be allowed. This objection was sustained by the Munsif and the amendment petition was rejected by him in Miscellaneous Case No. 321 of 1958. The petitioner preferred an appeal and it was allowed by the Subordinate Judge, 3rd Court, Patna, who reversed the decision of the Munsif and rejected the objection of the opposite party judgment-debtor. The latter took the matter in second appeal to the High Court to Miscellaneous Appeal No. 311 of 1959. The High Court allowed the miscellaneous appeal, reversed the order of the Subordinate Judge, 3rd Court, Patna, and restored the order of the Munsif, holding that the amendment could not be allowed in view of the principle of res judicata. On the 30th October, 1960, the petitioner applied for amending the execution petition by inserting the relief for appointment of a receiver to realize the usufruct and profits of the properties of the Judgment-debtor and to pay the same in satisfaction of the decretal amount. This petition of amendment was rejected by the Execution Munsif, Patna, by his order dated the 12th August, 1961. The petitioner has now obtained a rule from the High Court calling upon the opposite party to show cause why the order of the Execution Munsif, Patna, dated the 12th August, 1961, should not be set aside by the High Court in its revisional jurisdiction.

(2.) On behalf of the petitioner it was submitted by learned Counsel that the Execution Munsif should have allowed the amendment and there was no question of res judicata involved in the present case. It was conceded by learned counsel that in Miscellaneous Appeal No. 311 of 1959 the High Court did say that the lands in question could not be sold in execution of the money decree and the question could not be reopened again in the execution case. But the point taken by learned counsel for the petitioner is that in the present case there is no prayer for sale of the land but there is only a prayer for appointment of a receiver to realise the usufruct and profits of the properties and to pay the same in satisfaction of the decretal amount. In our opinion the argument put forward on behalf of the petitioner is well founded and must be accepted as correct. The appointment of a receiver in execution proceedings is a form of equitable relief which is generally granted on the ground that there is no effective remedy by execution at law. It was pointed out by the Judicial Committee in Wasif Ali Mirza v. Karnani Industrial Bank Ltd., AIR 1931 PC 160 that the court had power to appoint a receiver of the rents, issues and profits of the properties of the Nawab of Murshidabad in execution of the decrees obtained against him, though the properties were not alienable under the statute, namely, the Murshidabad Act (Act 15 of 1891). It was pointed out by the Judicial Committee that the Nawab had a disposing power over the income of the properties till the Secretary of State intervened and there was no question of public policy involved in the case in the matter of appointment of a receiver. The same view has been expressed by this High Court in Banwari Lal Sahu v. Baldeo Sah, 23 Pat LT 91: (AIR 1942 Pat 240) in which It was pointed out that the court had jurisdiction to appoint a receiver in respect of a holding the sale of which was prohibited under the Chota Nagpur Tenancy Act. For these reasons we hold that the amendment prayed for by the petitioner in his petition dated the 30th October, 1960, should be allowed. We accordingly set aside the order of the Execution Munsif, dated the 12th August, 1961, in Execution Case No. 294 of 1954 and direct that the amendment sought for by the petitioner in his petition dated the 30th October, 1980 should be allowed in the execution petition and thereafter the case should be dealt with by the Execution Munsif in accordance with law.

(3.) We accordingly allow this application in civil revision, but there will be no order as to costs as the opposite party has not appeared.