BANWARI LAL SAHU Vs. BALDEO SAH

JUDGEMENT

(1.) In these two civil revisions and in Second Appeal No. 448 of 1941 the same question of law arises and all these cases must succeed or fail according to the decision of this question. For the purpose of appreciating what the question is, it will be sufficient to state the facts in relation to Civil Revision No. 113. The petitioner obtained a money decree against the opposite party for about Rs. 6000. The opposite party is an occupancy raiyat in an area to which the Chota Nagpur Tenancy Act applies. Section 47 of that Act prohibits the sale of the right of a raiyat in his holding in execution of any decree, subject to certain exceptions immaterial to the present cases. Not being able therefore to realize the decretal dues by sale of the judgment-debtor's holding the decree-holder applied for the appointment of a receiver. This was opposed by the judgment-debtor but his objection was overruled and, by agreement between the parties, the person appointed as receiver was the decree-holder himself. This was; on 20 July 1935. On 20 December 1939 in Permeshwar Ram V/s. Charu Ram A.I.R. 1942 Pat. 52 , I decided that a Court has no jurisdiction to appoint a receiver in respect of a raiyat a holding the sale of which is prohibited bylaw. Soon after the publication of this decision, the judgment-debtor applied for discharge of the receiver in the present case on the ground that the Court had no jurisdiction to appoint him. This application was allowed and the receiver was discharged. Against that order the decree-holder appealed to the Judicial Commissioner. The appeal was dismissed and the decree-holder has moved this Court.

(2.) It has been contended that the decision in Permeshwar Ram V/s. Charu Ram requires reconsideration in view of a number of authorities which were not cited before but which have been cited before me at the present hearing. The facts of that ease were that the holder of a money decree against the deceased father of certain agriculturists, applied for execution of the decree against the assets of the deceased in their hands, and the Court appointed a receiver of the properties which the cultivators had inherited from their father. The question which was raised was whether in view of the fact that Section 47, Chota Nagpur Tenancy Act, barred the sale of the holding in execution of a decree, the decree-holder was a person who had a present right to remove his judgment-debtor. I held that he was not, relying on the Pull Bench decision of the Allahabad High Court in Anandi Lal v. Ram Sarup A.I.R. 1936 All. 495 in which it was held that the Court has no power to appoint a receiver of mortgaged properties pending an appeal from a preliminary decree for sale on a simple mortgage, on the ground that a simple mortgagee has no right to possession of the mortgaged property. The wider question that he is now raised was not raised in Permeshwar Ram V/s. Charu Ram A.I.R. 1942 Pat. 52 . That question is: Does Sub-rule (2) of Rule 1 of Order 40 protect the possession of a party to a suit or proceeding in which the appointment of a receiver is sought? The sub-rule is in this language: Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

(3.) The Full Bench held that the words any person are not confined to strangers, but include parties to the suit or proceeding. The decision of the Allahabad High Court has not been accepted by other Courts in a number of cases to which I have now been referred.