OFFICIAL ASSIGNEE OF BOMBAY Vs. CHIMNIRAM MOTILAL

JUDGEMENT

(1.) This is an appeal by the Official Assignee as representing the estates of defendants 2 and 3, who are insolvents, from a decree passed by Rangnekar, but as it was an ex parte decree the matters which have been argued before us were not discussed before the learned Judge. Two objections are taken by the appellant to the decree; the first is against the plaintiffs in the suit, and the second is against defendant 6 in the suit who was a subsequent mortgagee. I will deal with the case against the plaintiffs first.

(2.) On 11 April 1930, the plaintiffs were given a pledge to secure Rs. 50,000 on machinery, types and other articles appertaining to a printing press known as Shri Yenkateshvar Press, the pledgers being a firm called Khemraj Shrikissondas, who were the original defendants to the suit. On 1 August the plaintiffs commenced the suit to enforce their pledge. On 19th August another suit, was commenced by the person who afterwards became defendant 4 in this suit Murlidhar Shrinivas, who was an infant, the relief in his suit including a claim that the plaintiffs mortgage was not binding on him. I will refer to that suit as defendant 4's suit. On 25 August an order was made in the present suit appointing one of the plaintiffs receiver and manager of the press. The order included a provision that the receiver was not to act as long as the defendants paid interest and installments of principal: as therein provided. I may point out in passing that the order seems to have been wrong in appointing a manager, her cause the plaintiffs pledge did not include the business of the press, it only included certain assets of that business, and there was I think no case for the appointment of a manager. On 9 September the Court Receiver was appointed receiver of the press in defendant 4 a suit, that order being made by consent. On the same day defendants 2 and 3 in the present suit1 were adjudicated insolvent. Shortly after that, the plaint in this suit was amended by the leave of the Court, and defendants 2, 3, 4 and 6 were added, and also the Official Assignee, defendant 5, as claiming through the insolvent defendants 2 and 3. On 7 October an order was made in this suit that the receiver appointed in defendant 4's suit should, among other things, pay Rs. 1,500 a month to the plaintiffs. Those payments were to be made out of the funds standing to the, credit of the Shri Venkateshvar Press. That order again appears to be an order made without jurisdiction. I gather from the form of the order that it was a consent order made without any summons having been taken out, and I think that these consent orders in chambers ought not to be made unless a summons is taken out. If a summons had been taken out in this case the learned Judge's attention would have been drawn to the fact that he was being asked to order a receiver in another suit to pay certain moneys to the plaintiff's in this suit, and he would, have appreciated that he could not do that without having the persons interested in the Other suit before the Court.

(3.) However, that order was made, and no great harm was done, because on 11 November an order was made in defendant 4's suit which confirmed the payments directed to be made by the order in this suit of 7 October and directed such payments to be continued. There was another order made by consent in defendant 4's suit on 12 February 1931 which is not, I think, material, and then on 9 April the decree appealed from was made in this suit. By that decree it was declared that a sum of Rs. 11,497 odd was due to the plaintiffs together with certain costs, and then there was a declaration as to the amount due to defendant 6 I will refer to the facts relating to his position presently and then there was provision for redemption by the plaintiff's and defendant 6 and a provision that the payments of Rs. 1,500 per month by the receiver appointed in defendant 4's suit should continue. Then there are provisions for the redemption of the charge in favour of defendant 6 and for sale at the instance of the plaintiffs if not redeemed, or of defendant 6 if not redeemed.