LIQUIDATOR OF YEDHA SOCIETY Vs. PRAG DAS MAHESRI

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The respondent brought a suit for a declaration that a malik-makbuza plot belonging to his mortgagor Motiram should be sold in satisfaction of his mortgage first in priority to the claim of the appellant, the liquidator of the Yedha Co-operative Society which had been certified by the Registrar of the Co-operative Societies, Yedha Society being in liquidation and a liquidator being appointed. The respondent Pragdas had brought a suit, Civil Suit No. 41 of 1925, upon his mortgage and obtained a decree for sale, which was made final on 25th June 1926. An application for execution was made in December 1927 and the property was ordered to be sold. During the pendency however of the proceedings the Deputy Commissioner, Nimar, wrote a letter, which is on the record as Ex. D-5, to the executing Court, stating that he had attached the malik-makbuza holding for recovery of the sum of Rs. 1,762-14-9 and interest as arrears of land revenue and requesting the Court either to stay the sale, which was fixed for 23rd October 1928 until that sum had been recovered, or that the civil Court should sell the property, keeping that amount due for arrears of land revenue as the first -charge on the holding and a reference was made to Section 122, Land Revenue Act.

(2.) THE letter was dated 12th October 1928. After receiving that letter the Subordinate Judge recorded a finding that the contribution and costs of liquidation levied by the liquidator and certified by the Registrar had priority over the decree-holder's decretal amount. That finding was recorded on 16th January 1929. After that the execution was struck off in default, as the parties remained absent. A subsequent application for execution was made on 24th September 1930, but that too was struck off as wholly unfructuous on 13th December 1930. In the meantime Pragdas, the decree-holder, filed his suit on 5th December 1929 and obtained a decree on 19th December 1930. An appeal preferred by the liquidator was dismissed by the District Judge on 21st March 1931 and the liquidator has now preferred this second appeal.

(3.) AS regards the first point it may be noted that in para. 6 of the plaint it is clearly stated that a notice of the suit against the liquidator had been given under Section 80, Civil P. C, to the Deputy Commissioner, Nimar. It is not denied that such a notice was given. In the written statement no reference was made to this allegation in the plaint and no contention was raised that the suit was bad for want of notice to the liquidator. In appeal to the District Judge no contention was raised that the suit was bad for want of notice to the appellant, but it was contended that the appellant was not a proper party to the suit, as he was no party to the intimation or objection filed before the Sub-Judge, First Class, Khandwa. It was further stated that the plaintiff should have impleaded the Government through the Deputy Commissioner, Nimar, as defendant. This stand has not now been taken in second appeal, but it is contended that notice should have been given to the liquidator before the suit was filed against him. I do not think that, strictly speaking, this contention should be allowed to be raised in second appeal, because it is not a pure question of law, but is a mixed question of law and fact. No doubt a liquidator should be considered a public officer within the meaning of Section 2 (17), Civil P.C., and therefore Section 80 would apply to him.