SHIVA SANKAR GUPTA VS. AJIT KUMAR GANGULY ( 1 ) THIS is a suit seeking, in essence, to lift an attachment made in execution on April 3, 1946 of, amongst others, 10 Banerjee Lane, Calcutta, (shortened hereafter into "10") so that a deed of sale conveying "10" on March 29, 1952, for a consideration of Rs. 21,500/- may receive full effect. As matters stand now, the vendee has retained out of the total consideration money of Rs. 7000/- which he will pay to the vendor as soon as "10" is declared free from the said attachment. ( 2 ) THE vendor is the plaintiff Ganga Prosad Gupta who raised this action on July 10, 1952. He died during its carriage leaving behind him surviving five heirs who have since been substituted in his place. The vendee is the third defendant, Niresh Nath Bhattacharjee. The decree-holder who levied execution and got "10" attached therein is the first defendant, Ajit Kumar Ganguly. The judgment-debtor in that execution is the second defendant, Umesh Chandra Sil, who again is the vendor of Ganga Prosad Gupta as respects his undivided one-fourth share in "10" and, therefore, the vendor's vendor of the third defendant to that extent. This then is a running introduction of the parties whom I shall call hereafter Ganga, Ajit, Umesh and Niresh. ( 3 ) THE facts leading to this litigation need not be referred to further than as follows : in pursuance of a decree of this Court for specific performance of an agreement, Umesh, executed a conveyance on January 3, 1947 transferring, amongst others, his undivided onefourth share in "10" to Ganga, who, by other later conveyances, became the sole owner thereof. Seized of "10" so, he sold it to Niresh on March 29, 1952. But meanwhile Ajit armed with a decree against Umesh for Rs. 5,500/- had proceeded in execution and got "10" attached on April 3, 1946 without the leave of the Court, so necessary, because of possession thereof by the receiver in a partition suit between Umesh and his co-sharers. This attachment came to be known on or about March 29, 1952 when Ganga conveyed "10" to Niresh, who withheld Rs. 7,000/- out of Rs. 21,500/- so long as "10" was not freed from attachment. This attachment came to be known on or about March 29, 1952 when Ganga conveyed "10" to Niresh, who withheld Rs. 7,000/- out of Rs. 21,500/- so long as "10" was not freed from attachment. In the circumstances what Ganga prayed, and now his heirs pray, the Court for, is a series of declarations the pith of which is that the impugned attachment is void and must be removed and also an injunction restraining Ajit from proceeding with the execution of his decree. ( 4 ) AJIT alone contests the suit. Out of ever so many pleas traversed in his written statement running into twenty-four paragraphs, only two deserve to be mentioned. One, the instant suit is barred in limine under Section 47 of the Civil Procedure Code. Two the impugned attachment is not void. Other pleas are not insisted upon. Included in the pleas not so insisted upon is the one that the conveyance dated January 3, 1947 by Umesh in favour of Ganga is a colourable transaction with a view to defeating the creditors of the vendor, Umesh. That being so, the second issue struck on that is struck off, leaving for determination four issues listed below: 1. Is the attachment dated April 3, 1946 void? 3. Are the plaintiffs entitled to the declaration asked for? 4. Is the suit barred in limine under Section 47 of the Code of Civil Procedure? 5. What reliefs, if any, are the plaintiffs entitled to? ( 5 ) THE fourth issue is one which goes to the root of all issues. On first principles, it appears to be clear that by the conveyance dated January 3, 1947 Ganga purchased the right, title and interest of his vendor, Umesh. The fact that the conveyance came to be executed in obedience to a decree for specific performance of an agreement does not alter the position. The decree directed Umesh to execute a deed of sale in favour of Ganga. Umesh did what he was directed to. The decree did not confer on Ganga any higher right than what Umesh had. And what right had Umesh on January 3, 1947? His undivided one-fourth share in "10" subject to the attachment in execution on April 3, 1946 at the instance of Ajit. Umesh did what he was directed to. The decree did not confer on Ganga any higher right than what Umesh had. And what right had Umesh on January 3, 1947? His undivided one-fourth share in "10" subject to the attachment in execution on April 3, 1946 at the instance of Ajit. Thus, by his purchase on January 3, 1947 Ganga got that and that only and no more through his vendor, Umesh and conveyed just that too to his vendee, Niresh, by the conveyance dated March 29, 1952. From the date of Ganga's conveyance from Umesh he claimed through Umesh and not adversely to him. It is, therefore, plain that he was a representative of Umesh. ( 6 ) MR. Ghose, the learned counsel for the plaintiffs, will not, however, read the transactions as I do. He places in the forefront of his consideration the two decrees - one dated December 17, 1946 by Ganga against Umesh for specific performance of the agreement to sell his undivided one-fourth share in "10" and the other dated April 18, 1944 by Ajit against Umesh for Rs. 5,500 - and sees in Ganga and Ajit two rival decree-holders against Umesh, thus precluding the application of Section 47 of the Procedure Code. Mr. Ghose is right in a way. Ganga and Ajit were two rival decree-holders. But to stop here is to understate the problem and to simplify it much, too much. They were rival decree-holders up to a certain point. When the decree for specific performance of the agreement reaches its fruiting, what is it that Ganga gets? A conveyance in pursuance of the agreement to sell "10" - which he has been fighting for, which he has sued for and which Umesh has been recalcitrant enough to hold back. As soon as he gets such a conveyance, he steps into the shoes of Umesh after divesting Umesh of what he had. Claiming through him and not adversely to him, Ganga becomes his representative, which means that he becomes Ajit's judgment-debtor. So, the fact that at a certain point Ganga and Ajit were rival decree-holders does not prevent Ganga from becoming the representative of Umesh and therefore the judgment-debtor of Ajit supplanting Umesh who because of his conveyance to Ganga became destitute of the interest he had. ( 7 ) TO my thinking, this is the only way of looking at the problem. ( 7 ) TO my thinking, this is the only way of looking at the problem. Mr. Ghose, however, persists in his contention that Ganga and Ajit must be regarded as rival decree-holders against Umesh, whose representative Ganga never came to be. To regard the matter so as to keep one's eyes shut to the conveyance by Umesh to Ganga. None of the two cases Mr. Ghose cites on this point support his contention. One such case is (1) Ram Chunder and another v. Musstt. Hamiran and others, 11 CWN 433, where the District Judge ordered rateable distribution of the surplus sale-proceeds amounting to Rs. 1,011/- of the putni mehal of Hamiran against whom there were two decrees - one dated August 8, 1905 by Ram Chunder, the auction purchaser in execution of a mortgage decree against the putni, claiming that amount to be his, and another dated November 16, 1905 by the Khagra Zaminders, the Zaminders of the putni, claiming arrears of rent due prior to the sale thereof, the said sale having occasioned the surplus sale-proceeds. The Zaminders, however, had shown greater alacrity by having obtained attachment before judgment of Rs. 912 out of Rs. 1,011/- leaving thereby a residue of Rs. 99 to be attached at the instance of Ram Chunder. The order for a rateable distribution in this background aggrieved Ram Chunder, the auction-purchaser in execution of a mortgage decree, who came up in appeal to this Court. The preliminary point taken on behalf of the Khagra Zaminders, the respondents, was that no appeal lay as the dispute was between two rival decree-holders and not between a decree-holder and a judgment-debtor and that Section 244 of the 1882 Code (substantially corresponding to Section 47 of the present Code for the point at issue) which only could confer appealability would not therefore rule the matter. Rampini and Mookerjee, JJ. upheld the point negativing the contention on behalf of Ram Chunder that he was a representative of Hamiran, the putnidar and judgment-debtor, by virtue of his being her attaching creditor. Rampini and Mookerjee, JJ. upheld the point negativing the contention on behalf of Ram Chunder that he was a representative of Hamiran, the putnidar and judgment-debtor, by virtue of his being her attaching creditor. As Rampini, J. observes at page 435 : "but her (Hamiran's) interest is certainly not identical with, but opposed to, that of the Appellant, and I consequently cannot regard the appellant as in any way the representative of the judgment-debtor Hamiran, so as to bring the case within the provision of Section 244, C. P. C. " ( 8 ) WHAT holds good of the appellant Ram Chunder holds equally good of the respondents, the Khagra Zaminders. As Sir Ashutosh Mookerjee observes in a separate but concurrent judgment at page 436 : "they (the respondents) do not claim through the judgment-debtor but rather claim adversely to the judgment-debtor. " ( 9 ) THAT, then, is the reason of the decision: none, neither the appellant Ram Chunder nor the respondents Khagra Zaminders, claim through the judgment-debtors but adversely to them. This reason does not avail the plaintiffs before me. They are claiming not adversely to Umesh but through Umesh, because of their predecessor Ganga's conveyance from Umesh. ( 10 ) THE other case Mr. Ghose cites is (2) Anem Pedda Siva Parvathmma v. Krushna Chandra Sahani and another, AIR 1956 Orissa 53, when the claim of an assignee of the half share of a mortgage decree to recover by a suit a moiety of Rs. 2000/- realised from the judgment-debtors by a holder of the same decree was sought to be foiled on the ground that that was a question about execution and adjustment of the mortgage decree barring the suit under Section 47 of the Procedure Code. A contention as that came to little, as it was a matter between co-decree-holders without touching the rights or liabilities of the judgment-debtors. In the case in hand, Ganga and Ajit cannot be said to be co-decree-holders. Worse for Ganga and his heirs, the very nature of Ganga's decree against Umesh culminating in a conveyance in his favour by Umesh makes Ganga the representative of Umesh and therefore a judgment-debtor of Ajit. That the word 'representative' is compendious enough to include the purchaser of Umesh's interests, as Ganga is, is now well held: (3) Ishan Chandra Sarkar and Anr. v. Beni Madhab Sarkar and Anr. That the word 'representative' is compendious enough to include the purchaser of Umesh's interests, as Ganga is, is now well held: (3) Ishan Chandra Sarkar and Anr. v. Beni Madhab Sarkar and Anr. , ILR 24 Cal 62 (FB) and (4) Ram Chander Babu Lal v. Mulchand, ILR 1946 Lahore 672 (FB) - two cases Dr. Das, the learned Counsel for Ajit, cites. Therefore, the question of impugned attachment at the instance of Ajit being good or bad ought to have been raised in execution and not by a suit like the one I am seized of, a suit which Section 47 bars. ( 11 ) GANGA did not raise it in execution, as Dr. Das reminds me by referring to a formal order dated May 29, 1952 in suit No. 125 of 1943 of this Court - the suit of Ajit against Umesh for recovery of Rs. 5,500/ -. Perusing the order I find that an application dated April 25, 1952 of Ganga was dismissed with costs. But what was the application about? That is not stated in the order. All that is stated is that Ganga's application dated April 245, 1952 was dismissed with costs. But in view of the submissions made at the Bar I may take it as an application under Section 47 of the Procedure Code. Mr. Ghose asks me to ignore this "foolish application". I may do so if I find Ganga not to be a representative of Umesh. If that, Ganga's application under Section 47 "foolishly" brought (to quote Mr. Ghose) will not take away his right to sue. But, most unfortunately for Ganga and his heirs, I find Ganga to be a representative of Umesh. I have stated why. So his application under Section 47 ibid - a very proper application - having failed, he cannot re-agitate the matter by a suit. If I treat it as an application under Order 21, Rule 58 of the Code, that will not help matters forward for Ganga's heirs. Order 21, Rule 58 is available to one who is not a party or a representative of the party. For such a one (a party or its representative) all that is available is Section 47. And Section 47 having not been availed of or availed of but without success, a suit - the one before me - does not lie. I find the fourth issue so. For such a one (a party or its representative) all that is available is Section 47. And Section 47 having not been availed of or availed of but without success, a suit - the one before me - does not lie. I find the fourth issue so. ( 12 ) THE first issue about the impugned attachment being void does not accordingly arise. Still only this may be said. Two views are possible. One is that the consent of the Court to sue a receiver or to proceed against a receiver in execution is a condition precedent to the right to sue or the right to proceed. Lack of prior consent makes an incurable defect which cannot be rectified by subsequently applying for, and getting, the permission to continue the action or the execution proceedings commenced without such permission. Bodily, Judge, held as much in (5) Pramatha Nath Gangooly v. Khetra Nath Banerjee, ILR 32 Cal 270, where an action was brought without the leave of the Court against a receiver. The other view taken by eminent Judges of this Court including Sir Ashutosh Mookerjee is that the leave of the Court subsequently obtained validates the suit or execution commenced without it. See (6) Rustomjee Dhanjibhai Sethna v. Frederic Gaebele : ILR 46 Cal 352, (7) Banku Behari Dey v. Harendra Nath Mukherjee, (8) Maharaja of Burdwan v. Apurba K. Roy and (9) Sarat Chandra Banerjee v. Apurba Krishna Roy and Ors. reported at pages 54, 872 and 925 respectively of 15 CWN, in none of which Bodily, J. was followed. Indeed he was dissented from. The last named case and also the one before it speak of the leave to be subsequently obtained to carry on against the receiver execution proceedings, commenced without such leave. The principle laid down in these cases comes to this: the leave of the Court is not a condition precedent to the institution of the action or to the initiation of the execution. Do not dismiss the suit or the execution against the receiver because the leave of the Court is not there. Stay all proceedings for a reasonable time so that the leave may be obtained and the defect cured. Do not dismiss the suit or the execution against the receiver because the leave of the Court is not there. Stay all proceedings for a reasonable time so that the leave may be obtained and the defect cured. ( 13 ) WHERE it is necessary for me to record a firm finding on the first issue, I would have governed which is to say that the impugned attachment is voidable, not void, as Dr. Das rightly contends. But even if it is voidable, it is open to the plaintiffs to say: we are here to avoid it. Our suit may be treated so. And this is what Mr. Ghose submits. But in view of my finding that Section 47 of the Procedure Code stands between the plaintiffs and their success here, it will be a profitless task to pursue this point. ( 14 ) I owe it to Mr. Ghose to refer to (10) Kanhaiyalal v. Dr. D. R. Banaji, AIR 1958 SC 725 where, however, it was assumed, and not decided, that a sale of a property in the hands of the receiver without the leave of the Court was voidable and not void. ( 15 ) ANOTHER matter may just be touched. Order 21, Rule 52 of the Procedure Code has given rise to extreme contentions, Mr. Ghose contending that compliance therewith (as where) dispenses with the necessity of obtaining the leave of the Court and Dr. Das contending that the property in the hands of the receiver is not in the custody of the Court, Rule 52 applying moreover to movable property. The property being in the possession of the receiver, the leave of the Court which appointed the receiver must be obtained before proceeding against it, compliance or no compliance with Rule 52. Otherwise confusion can only result, nothing to say of the person proceeding so coming on the edge of the law of contempt (Kanhaiyalal's case ante ). I am, therefore, unable to accept Mr. Ghose's contention. Equally unable am I to accept Dr. Das'. The receiver is but the hand of the Court. So, what the receiver is in possession of, the Court is necessarily in possession of too by its hand. I am, therefore, unable to accept Mr. Ghose's contention. Equally unable am I to accept Dr. Das'. The receiver is but the hand of the Court. So, what the receiver is in possession of, the Court is necessarily in possession of too by its hand. If the words "any interest or dividend becoming payable thereon" occurring in Rule 52 be taken as an indicia of reckoning property referred to as movable property, it is worth remembering that there are movables such as furniture in which neither interest nor dividend is payable. Are such movables excluded then? In (11) Pratapmull Rameshwar v. Chunilal Juhari, ILR 60 Cal 345, Dr. Das cites, Rankin, C. J. (with whom C. C. Ghose, J. agrees) simply raises a doubt if Rule 52 applies to immovable property. His Lordship does not decide it. And it is observed too that the Court while it appoints a receiver takes possession of the property. Here is the relevant passage at p. 348:-"apart altogether from any question whether Rule 52 applies to immovable property, while it is true in a sense that the Court, while it appoints a receiver, takes possession of the property, I am reasonably clear that the rule was never intended to apply to a case where the Court appoints a receiver of the rents and profits of immovable property. " ( 16 ) THUS, while the contentions of Dr. Das seeking to confine Rule 52 to movables and to treat the possession of the receiver as not the possession of the Court fail, his remaining contention that Rule 52 does not apply where the Court appoints a receiver of the rents and profits of immovable property receives support from the passage quoted above. ( 17 ) I need say no roe on a matter which does not call for decision, save referring to (12) In re: Bai Motibai in Central Bank of India Ltd. v. Prabhakar Anandrao Dabholkar and others, AIR 1942 Bom 53 and (13) Kanhayalal Harmantrao v. Reginald Mathalove and others, AIR 1951 Nag 52 which hold that Rule 52 is applicable as much to movable as to immovable properties. I, therefore, answer the first issue thus : the impugned attachment is not void but voidable; the suit being barred under Section 47 of the Procedure Code, it is useless to proceed with this issue further. I, therefore, answer the first issue thus : the impugned attachment is not void but voidable; the suit being barred under Section 47 of the Procedure Code, it is useless to proceed with this issue further. ( 18 ) THE determination of the fourth issue being what it is, the plaintiffs are disentitled to the declarations they ask for and to any relief whatever. The third and the fifth issues are found so. ( 19 ) IN the result, the suit fails and is dismissed. ( 20 ) COSTS shall not follow the event. They shall not, because Ajit did a wrong thing to get an attachment of "10" without the leave of the Court. I therefore direct that each party do bear its costs. Suit dismissed