RAJENDRA SINGH Vs. UMA PRASAD

JUDGEMENT

(1.) This is an appeal from an order passed by the Special Judge of Dehra Dun exercising jurisdiction under the U.P. Encumbered Estates Act. The learned Judge has appointed a receiver in respect of the property of the landlord whose application was forwarded to him by the Collector under Section 6 of the aforesaid Act. The order was passed at the instance of a creditor who had obtained a decree for sale on foot of a mortgage deed executed by the landlord. It is contended before us that the learned Judge had no jurisdiction to appoint a receiver in the exercise of his powers of a Special Judge under the Encumbered Estates Act. The question was raised in the lower Court bud the matter does not appear to have been argued as elaborately before it as it has been argued here. The only ground on which the learned Judge justifies the appointment of a receiver is that the appointment "will not hurt an honest debtor whilst it will help a creditor". It seems to have been assumed that all the provisions of the Civil Procedure Code, including Order 40, are applicable to proceedings taken before the Special Judge under the Encumbered Estates Act.

(2.) We have carefully examined the entire framework of the Encumbered Estates Act and have come to the conclusion that a Special Judge exercising jurisdiction under that Act has no power to appoint a receiver at the instance of the holder of a simple money decree or a mortgage decree. It is not disputed that the Act itself does not make the provisions of the Civil Procedure Code in their entirety applicable to proceedings under the Encumbered Estates Act. It is however pointed out that the rules framed by the Local Government under Section 54 of the Act have made the Civil Procedure Code applicable. Rule 6 of those rules runs as follows: Proceedings under this Act shall be governed by the provisions of the Civil Procedure Code of 1908 for the time being in force so far as they are applicable and not inconsistent with the provisions of the Act and of these rules.

(3.) A reference to Section 54 under which these rules have been made will show that the Local Government is empowered to make rules consistent with the provisions of this Act for regulating the procedure of the Collector, the Special Judge and the Settlement Officer in proceedings under this Act and generally for carrying out the purposes of this Act.