SOMASUNDARAM CHETTIAR Vs. KMPARIMALA KANDAR

JUDGEMENT

(1.) These were application's in the lower Court by the judgment-debtor and by the receiver over the properties sold in execution to have the sale set aside upon various grounds. We are here only concerned with two of them which are technical objections. The sale of the properties had been ordered by the Sub-Court, Salem. The same Court in another suit appointed the receiver over the properties which were being brought to sale in pursuance of the orders of the Court. After his appointment the receiver put in an application to the same Court for permission to pay Rs. 1,000 towards the decree debt.

(2.) In this application he described himself as the receiver and he asked that the sale might be stayed for the purpose of enabling him to make that payment towards the decree debt. That application was granted and, we are told that there was subsequently an adjournment of the sale for one week. The sale then took place and, after it, the applications, the orders on which are the subject of these two applications, were made by the judgment-debtor and the receiver to have the sale set aside upon various grounds. The grounds with which we are concerned are that previous leave of the Court for the sale had not been obtained as it should have been in view of the fact that a receiver had been appointed and, secondly, that the receiver was not made a party to the sale proceedings. Upon the first point, the learned Subordinate Judge held that that objection was a good one and that, as execution proceedings went on without the leave of the Court which appointed the receiver having been previously given, the sale was invalid and. he therefore set it aside. It was not necessary under these circumstances to go into the other objection taken, namely, that the receiver ought to have been made a party to the execution proceedings.

(3.) We however will deal with both the objections here. In support of his order the learned Subordinate Judge referred to Fraser & Ross V/s. Krishnaswamy Ayyar 1923 Mad. 144 and it was referred to here also. In, that case it was held that a mortgage decree-holder is bound to apply to the Court appointing a receiver of the mortgaged properties in another suit, for leave to execute his decree, and cannot proceed to sell the mortgaged property in execution of his decree without such leave. That was a decision of Devadoss, J. The distinction between that case and the present case is that the receiver had been appointed by a Court other than the Court in which execution proceedings were going on, and it is quite clear that the reason for that decision was this : that, where a sale is proceeding in one Court in execution and a receiver is appointed by another Court over the properties which are about to be sold in execution, if the sale is allowed to proceed in the executing Court then there is a conflict of orders, namely, the order appointing the receiver over the property and vesting the property in him, and the other order, ordering the sale of the very property which the other Court has appointed a receiver over. There is also another objection, namely if a decree-holder is allowed to execute his decree and go on with a sale notwithstanding the fact that another Court has appointed a receiver over the same properties, it really amounts to a contempt of the order of the Court which appointed the receiver. But it is quite obvious that, where there are two different Courts, there is an obvious conflict of orders, between two Courts. Here the Courts were the same.