PARMESHWAR RAM Vs. CHARU RAM

JUDGEMENT

(1.) This is an application by the judgment-debtors. The facts giving rise to it were as follows. Bhola Ram and Biseswar, the father and uncle of the petitioners, obtained a loan from the opposite party. After the death of the debtors the opposite party obtained a money decree against the petitioners directing that the decretal debt should be realized out of the assets left by the father and uncle of the petitioners. As "the" only assets left by the deceased debtors were raiyati holdings, the sale of which is prohibited by Section 46, Chota Nagpur Tenancy Act, the Court below has appointed a receiver of the raiyati holdings inherited by the petitioners c from their father. It is contended that the appointment of a receiver is prohibited by Sub-rule (2) of Order 40, Rule 1, Civil P.C. While Sub-rule (1) of that rule empowers the Court to appoint a receiver and to remove any person from the possession or custody of the property where it considers this course to be just and convenient, Sub-rule (2) enacts that nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

(2.) The decree-holder certainly has not a present right to remove the petitioners from the possession of the raiyati holdings. Sub-rule (2) therefore appears to be a clear bar to the appointment of a receiver in the present case. This view is supported by the decision of the Pull Bench of the Allahabad High Court in Ram Swarup V/s. Anandi Lal ( 36) 23 in which the question was whether the Court had power to appoint a receiver of mortgaged properties pending an appeal from a preliminary decree for sale on a simple mortgage. The learned Chief Justice stated at p. 965: The general power under Sub-rule (1) has therefore been curtailed by Sub-rule (2). Both the sub-rules must be read together as forming part and parcel of one rule. It is impossible to separate them so as to apply the one and ignore the other. It necessarily follows that there is no authority in a Court whatsoever to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. The language of Sub-rule (2) is plain, and there is no escape from it. In order to interpret the rule, we must give the proper and ordinary meaning to the words used therein, and not interpolate into the rule some new words and then interpret the rule in the light of the new words so introduced.

(3.) The opposite party relied on a decision of the Madras High Court in M. Paramasivan Pillai V/s. Ramasami ( 33) 20 A.I.R. 1933 Mad. 570 where it was held that even in a case where no personal relief subsists against the mortgagor and his properties, the Court has jurisdiction to order the appointment of a receiver in the suit of a simple mortgagee.