KOSSIA DEVI Vs. KASHINATH PRASAD

JUDGEMENT

(1.) This is an application in revision directed against the order of the court below staying the preparation of the final decree in a mortgage suit till the receiver in insolvency is made a party to the present proceeding.

(2.) The petitioners claim to be the mortgagees in respect of a mortgage executed by the opposite party in the year 1952. By the order dated 4-6-1956, the opposite parties were adjudged insolvents. Mortgage Suit No. 86 of 1973 was filed by the petitioners in which a preliminary decree was passed on 23-7-1974. The receiver was not a party to the suit. The petitioners thereafter applied for preparation of final decree. On 4-4-1975, one of the judgment-debtors appeared and filed an application stating that since the opposite party-mortgagors had been adjudged insolvents and the property of the Insolvents vested in court and the receiver, there should be stay of proceeding for preparation of final decree until the receiver was made a party to the proceeding. This application was allowed. Hence this civil revision application.

(3.) Learned counsel for the petitioners contended that the receiver was not a necessary party, At best he was a proper party. Since the petitioners, who are plaintiffs in the mortgage suit did not want the receiver to be impleaded, no order could be passed forcing them to implead the receiver. He relied on the decisions in Sant Prasad Singh v. Sheoduf Singh, ILR 2 Pat 724 = (AIR 1924 Paf 259). Union Bank of Bijapur v. Bhimrao Shrinivasarao Jorapur, (AIR 1929 Bom 258) and Khazanchi Shah v. Nizam Din, (AIR 1930 Lah 791). He further contended that the decision of the Judicial Committee reported in Kala Chand Banerjee v. Jagannath Marwari, (AIR 1927 PC 108) is distinguishable as the decision aforesaid was given under the Insolvency Act. 1907 and not the present Insolvency Act which is of the year 1920.