ANANDRAO BHAI Vs. SITABAI

JUDGEMENT

(1.) [His Lordship after setting out the facts continued:--] The first question that arises under the decree is whether the Court had power or jurisdiction to vest the plaintiff's property in Special Commissioner, the second defendant herein. The question is specifically raised in para 9 of the plaint and by issue No. 5 in the Suit and it would I think be convenient to discuss this at once. If the Court had no power to vest the plaintiff's property in the Special Commissioner the conveyance, Ex. No. 3, executed by him on the 22 September, 1906 in favour of the first defendant would be valueless. This question has recently arisen more than once but it has never been adjudicated upon and as a question of practice is one of considerable importance.

(2.) It is a very suggestive fact that whereas in the first consent order Mr. Lane is very properly appointed a receiver, in this order subsequently obtained in the same suit and for very much the same purposes Mr. Manker is appointed a Special Commissioner. Why is this ?. The answer is not far to seek. At the date of this consent decretal order a rule of the Bar Society was in force which prohibited all practising Barristers from accepting the office of the Receiver. In considering the question whether the Court has power to vest the property of a party before it in a Special Commissioner for the purpose of executing a conveyance thereof in favour of a stranger, it would be desirable to consider whether a Special Commissioner for the purpose of effecting the sale of a litigant's property is known or to recognized by the law. It must at the outset be admitted that such orders have before now been made by this Court. They mostly have been consent orders. The use of the words "Special Commissioner instead of "Receiver" in these orders have always been used as a subterfuge to evade the operation of the Bar rule I have mentioned above and another rule which still is in existence that no officer of the Court should accept the office of Receiver without the express permission of the Chief Justice. There is yet another reason why the subterfuge has been resorted to. Some years ago the late Chief Justice Sir Lawrence Jenkins by a circular drew the attention of the Original Side Judge8 to the case of Allan V/s. Loyd (1879) 12 Ch. D. 447 in which the Court of Appeal held that the appointment of a solicitor as a Receiver was improper and because the Judges began refusing to appoint solicitors as Receivers recourse was had to this mode of evading the objection by calling them. Special Commissioners instead of Receivers whenever it was desired to appoint them Receivers. The mere fact however that such orders as these have before now been made does not legalise the making of them if the Court has no power or jurisdiction to make them nor does it entitle a party to say because these Courts have made such orders before they should continue to make them. Nor again the mere fact that Courts have inadvertently been hitherto making such orders is any justification that similar orders should be continued to be made. This is not by any means the first time that the legality of passing such orders has been questioned but so far as I am aware this is the first time the question has directly arisen in a suit and has been fully discussed at the Bar. The question again so far as I know is not covered by any authority.

(3.) The arguments advanced by the first defendant in support of the order vesting the property in the second defendant have been carefully noted by me. They amount to this :- The Court had power to vest property in the Special Commissioner, first, under the inherent general jurisdiction of the Court, and, secondly, under the Charter and the Amended Letters Patent. If this was a matter of procedure and not of Relief then it is a mere irregularity in procedure. Irregularity was either in describing Mr. Manker as Special Commissioner instead of calling him Receiver or it was an irregularity to vest the property in him at all. This irregularity cannot vitiate the sale. Mr. Manker was Commissioner for sale. That at all events was a good appointment. He had anyhow power to enter into an agreement to sell. Under Section 32, para 2, of the Indian Trustee Act, the Court had power to vest the property in the second defendant.