MANOHAR SINGH Vs. HAKIM RIAZUDDIN

JUDGEMENT

(1.) This case has been referred to a Division Bench by a learned Judge of this Court because an unreported decision of a Bench of this Court appeared to be inconsistent with the pronouncement of their Lordships of the Privy Council in Lal Rajendra Narain Singh V/s. Mt Sundara Bibi . In this case the decree-holders had obtained a simple money decree against the judgment debtors who are agriculturists in Bundelkhand. Under Section 16, U.P. Bundelkhand Land Alienation Act (2 of 1903), no land belonging to a member of an agricultural tribe shall be "sold" in execution of a decree or order of any civil or revenue Court. The decree- holder's application for execution by attachment and sale having proved infructuous, he applied for the appointment of a receiver of the judgment-debtor's property. The Munsif granted his application and appointed a receiver and the District Judge on appeal has affirmed that order.

(2.) It is quite dear that the property has not in fact been sold in execution of any decree by the Civil Court at all, but only a receiver has been appointed and as the appointment of a receiver is one of the modes of execution laid down in Section 51, Civil P.C. it would, therefore, seem prima facie that there is no prohibition against the appointment of a receiver. The learned Advocate for the appellants relies on the definition of the word "land" in Section 2, Sub-section (2) of the Bundelkhand Land Alienation Act in which and includes a share in the profits of a Mahal as well as a right to receive rent, It is urged before us that the effect of the appointment of a receiver is either to transfer a share in the profits of a Mahal or, at any rate, to receive rent and should, therefore, be deemed to be expressly prohibited by the Act. The receiver however is an officer of the Court and the appointment of a receiver who takes over possession of the judgment-debtor's property cannot be regarded as a transfer of the judgment-debtor's rights and interests to the receiver. No doubt in the unreported case of Hira Lal V/s. Manni Lal First Appeal No. 226 of 1930 decided by a Bench of which one of us was a member it was held in a short order that a receiver could not be appointed inasmuch as the provisions of Order 40, Rule 1, Sub-rule (2), did not authorise such an appointment.

(3.) Unfortunately at that time the attention of the Bench was not drawn to the several previous oases which were relevant. We might mention that in Kirtarth Gir V/s. Mathura Prasad Ram , it had been held by a Bench of which one of us was a member that when in execution proceedings a receiver is appointed, he is put into the position of the judgment-debtor and there is no transfer of the property from the judgment-debtor to him and that accordingly the appointment of a receiver whether the interest of the judgment-debtor is transferable or not does not offend against Section 20, Sub-section (3), of the Agra Tenancy Act. In Rajendra Narain Singh V/s. Mt. Sundara Bibi , their Lordshipa of the Privy Council held that although a right to future maintenance was not attachable and should not be sold, a receiver could be appointed to realise rents and profits with a direction to pay there out a sufficient and adequate sum for the maintenance of the members of the family and to apply the balance, if any, to the liquidation of the decree. This case was followed and relied upon by another Bench of which one of us was a member in another unreported case of Hanuman Prasad V/s. Balbhaddar Prasad Ex. First Appeal No. 185 of 1933, in which it was pointed out that the appointment of a receiver being one of the modes prescribed in Section 51, Civil P.C. for the execution of a decree, such an appointment was legitimate and there was nothing in the Bundelkhand Land Alienation Act which was contrary to it. A similar question arose before their Lordships of the Privy Council in Wasif Ali V/s. Karnani Industrial Bank Ltd. . In that case under the Murshidabad Act of 1891, the Nawab Bahadur was not authorised to sell, mortgage, devise or alienate the property but was entitled to appropriate the income of the property granted by Government. Their Lordships held that inasmuch as the Nawab had a disposing power over the income, once this was established no question of public policy was involved and their Lordships were unable to see that either the terms of the statute or the indenture were contravened by aiding the creditors of the Nawab to effect payment out of his income of the debts which he had incurred. There too the alienation of the property was prohibited but there was no express restriction against the disposal of the income and it was laid down that the appointment of a receiver did not in any way contravene the provisions of the Act.