P S S MEYYAPPA CHETTIAR Vs. NAGAMAI ACHI

JUDGEMENT

(1.) The petitioner was a party to the proceedings under Section 145, Criminal Procedure Code, the dispute being one as to the possession of a house. The Sub-Divisional Magistrate found that possession was not established by either party and, on 27 February, 1930, passed an order attaching the house until the right to possession of it by one party or the other was determined by a civil Court. This order was confirmed by the High Court in revision on 12 December, 1930. The applicant for revision was the present petitioner. On 30 June 1932, the Receiver who had been appointed in accordance with Clause 2 of s, 146, Criminal Procedure Code, asked for permission to lease the house and on the following day he leased it to the petitioner. On its becoming known to the Joint Magistrate that the lease had been given to one of the disputing parties he removed the Receiver from his appointment and set aside the lease. Against the order cancelling the lease the petitioner has come up on revision.

(2.) The point taken for the petitioner is that when the lease had once been granted, it could not be cancelled summarily, as it has been, by the Joint Magistrate, but that the only procedure was to bring a suit against the petitioner after giving him notice under Section 111, Transfer of Property Act, Clause 2 of Section 146 provides that a Receiver who is appointed under it is to have, subject to the control of the court, all powers of the Receiver appointed under the Civil Procedure Code. By Order XL, Rule 1, Civil Procedure Code, the court may confer on a Receiver all powers of management etc., or such powers as the owner himself has as the court thinks fit. In the present instance there seems to have been no limitation imposed upon the powers of the Receiver and so it is to be taken that he had all the general powers of management, and these powers of management include the granting of leases, It is stated in Woodroffe and Ameer Ali's Commentary on the Civil Procedure Code, that, under the general permission of the court, a Receiver may in his discretion let out the property for any period not exceeding 3 years, but that he may not do so for a longer period without obtaining special permission. I should, note that in this case a lease has been granted to the petitioner until such time as the civil Courts have decided the matter. It is possible that the lease may endure for less than 3 years, but it is equally possible that it may last for a considerably further period. Such an indeterminate lease was certainly not a proper one for the Receiver to grant. That, however, a lease can be granted by the Receiver within the limitations above stated seems beyond question and is not, indeed disputed. The Magistrate has stated in his order that it has been clearly held by various High Courts that a Receiver must take specific instructions from courts and act strictly in accordance with the same, but he has not stated what his authorities are, neither have they been mentioned in this Court in the course of the argument on this petition. The Receiver has in fact, in this case asked permission beforehand of the Magistrate to grant the lease, but, once he has got that permission, it does not seem that he needed to ask the permission of the Court as to whom the lease should be granted, EO long, at least, as he did not practise a fraud upon the court.

(3.) The Joint Magistrate has based his decision on the ruling in Lachmi Kuer V/s. Gajadhar Prashad 104 Ind. Cas. : 7 Pat. 1 : 28 Cr.L.J. 776 : A.I.R. 1927 Pat. 393 : 9 A.I. Cr. R. 8. But this decision does not bear on the point raised by Mr. K.S. Jayarama Ayyar for the petitioner. It has nothing whatever to do with the granting of any lease. What it does is to declare the principle that, when an attachment has been made under Section 146 pending the decision of the civil Courts possession should not be made over to either party to the dispute so long as the attachment continues. For such a principle authority is hardly required. Though the order under Section 146 does not prohibit the entrance of any party upon the property in dispute pending the decision of the civil Court, it is clearly implied by the fact of attachment that neither party is meant to enter upon the property in any circumstance till the civil Courts have decided the matter. The decision on which Mr. Jayarama Ayyer lays stress is in Krista Chandra Ghose Vs. Krista Sakha Ghose 1 Ind. Cas. 470 : 36 C. 52 : 12 C.W.N. 1023 a decision of Woodroffe, J, who it an eminent authority on the law of Receivers In that case it was held that, when a lease had been already granted by a Receiver, the matter had passed beyond the court's control and that, even though the lease had been granted to one of the parties, that party was not subject to the jurisdiction of the court as lessee. It was also made to appear in that case that, even in the case of collusion between the Receiver and his lessee, the proper course was to proceed by a suit. Nothing however, is said in this decision as to what will be the position if a fraud has been practised upon the court. As to that there is another decision of the same High Court, which is found in Sirish Chandra V/s. Debendra Nath . In that case it was held by a Divisional Bench that misrepresentation or concealment by a Receiver of material facts are sufficient to justify the court in Betting aside a lease sum manly when that lease has been granted in consequence of such misrepresentation or concealment of facts. It has been pointed out by Mr. Jayarama Ayyer that in that particular instance it would appear that the Receiver had no authority to grant leases, but this does not matter from the point of view of Mr. Jayarama Ayyer a contention, which is that in no circumstances can a lease once granted by a Receiver be set aside except by means of a suit. In the circumstances of that case the learned Judges of the Calcutta High Court did not set aside the lease as they found that there had been no fraud, but they made it clear that if there had been a fraud they would have set it aside. I take this as an authority that, if it is found that there has been a fraud upon the court in granting and obtaining a lease, a Magistrate is entitled to set the lease aside in a summary manner as the Magistrate has done in the case under review.