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1970 DIGILAW 37 (GUJ)

J. R. VAKHARIA and SONS. (P. ) LIMITED v. KANTILAL TEJAJI PA/h H OF FULCHAND DEVCHAND

1970-03-13

S.N.PATEL

body1970
S. N. PATEL, J. ( 1 ) SECOND Appeal No. 90 of 1965 is filed against the judgment and decree in Miscellaneous Civil Appeal No. 32 of 1964 decided on 11th December 1964 by the learned District Judge Broach. The respondent judgment creditor obtained a money decree in Civil Suit No. 33 of 1961 against the appellant judgment debtor. The Judgment creditor filed Regular Darkhast No. 24 of 1964 for execution of the aforesaid decree and prayed for appointing a receiver to collect rents of the properties of the judgment debtor in possession of the tenants to satisfy the decree. The Darkhast was resisted by the judgment debtor on several grounds. One of the objections of the judgment debtor was that immovable properties in possession of tenants were not attached rent from the tenants was possible future income of the immovable properties in possession of the tenants and a receiver of possible future income of immovable properties not attached could not be appointed. A receiver could be appointed only in respect of a definite property. The learned Civil Judge overruled the objections of the judgment debtor and appointed a receiver to collect rent from the tenants shown in the schedule attached with the Darkhast. The learned Civil Judge ordered that the receiver should recover rent till the Darkhast amount was realised. ( 2 ) THE judgment debtor filed Miscellaneous Appeal No. 32 of 1964 against the order passed by the learned Civil Judge to appoint a Receiver to collect the rents from tenants of the Judgment debtor. The learned District Judge dismissed the appeal and confirmed the order passed by the learned Civil Judge. In this second appeal Mr. R. M. Vin raised same contentions which were raised before the lower appellate Court. Mr. Vin contended that the holder of power of attorney of the judgment creditor had filed the Darkhast in his own name and therefore the Darkhast was not maintainable. The execution application Exh. 1 is signed by the attorney Kantilal Tejaji as an attorney for Fulchnd judgment creditor. Obviously the Darkhast was filed on behalf of the judgment creditor. Also the power of attorney is authorised under the document of power of attorney to file an application for execution. Therefore there is no substance in this contention of the appellant. ( 3 ) NEXT Mr. Obviously the Darkhast was filed on behalf of the judgment creditor. Also the power of attorney is authorised under the document of power of attorney to file an application for execution. Therefore there is no substance in this contention of the appellant. ( 3 ) NEXT Mr. Vin contended that Darkhast was filed against the Director of the Company named Jalbhai Jamshedji Vakharia and not against the judgment debtor Company itself and therefore execution proceedings could not proceed against the Director of the Company. The learned District Judge has found the Darkhast was not filed against the Director of the Company but it was filed against the Company judgment debtor. Mr. Vin has not been able to show that the Darkhast was filed only against the Director and not against the Company judgment debtor. There is no substance in this contention of the appellant. ( 4 ) MR. Vin then contended that a receiver cannot be appointed for realising future mesne profits of any immovable property which was not attached. He submitted that a receiver could be appointed only in respect of a definite property. Mr. Vin relied upon A. I. R. 1936 Bombay 399 Harilal Chhotalal Shah and another v. Chaturbhai Punjabhai and others in support of his contention. In the aforesaid case the Division Bench of the Bombay High Court observed that a receiver of possible future income of property could not be appointed because such income was not by itself definite property of the judgment debtor at the time of the receivers appointment. Those observations were made while construing sec. 1 of Bhagdari and Narwadari Act. Their Lordships construed sec. 1 of the Bhagdari Act and held But we have to deal with the very precise language of sec. 1. It seems to me that to appoint a receiver of the Sand would amount to seizure or attachment of the land and that such appointment is therefore prohibited by the Act. The observations in the aforesaid case are made in view of language of sec. 1 of Bhagdari and Narvadari Act and are not applicable to the present case. ( 5 ) IN A. I. R. 1925 Privy Council 176 Lal Rajindar Narain Singh alias Lallu Sahib v. Mt. Sundar Bibi a question arose as to the remedy of a judgment creditor when the judgment debtor had the right of maintenance only in the properties. 1 of Bhagdari and Narvadari Act and are not applicable to the present case. ( 5 ) IN A. I. R. 1925 Privy Council 176 Lal Rajindar Narain Singh alias Lallu Sahib v. Mt. Sundar Bibi a question arose as to the remedy of a judgment creditor when the judgment debtor had the right of maintenance only in the properties. Their Lordships observed:- Their Lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that sec. 60 of the Civil Procedure Code precludes an application for that purpose. The proper remedy lies in a fitting case in the appointment of a receiver for realising the rents and profits of the property paying out of the same a sufficient and adequate sum for the maintenance of the judgment debtor and his family and applying the balance if any to the liquidation of the judgment creditors debt. ( 6 ) IN A. I. R. 1931 Privy Council 160 Wasif Ali Mirza Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd. also it is laid down that where attachment of the immovable property of the judgment debtor is prohibited under any law the Court has power to appoint a receiver of the rents and profits of the properties in execution of a decree because the judgment debtor has a disposing power over the income. From the above authorities it is clear that a receiver could be appointed to realise future rent and profits from tenants in possession of immovable properties of a judgment debtor in execution proceedings. Sec. 51 (d) of the Civil Procedure Code reads as follows:-SEC. 51 Powers of Court to enforce execution. Subject to such conditions and limitations as may be prescribed the Court may on the application of the decree holder order execution of the decree (A ). . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . (d) by appointing a receiver; or (e ). . . . . . . . . . . . . . . . Under sec. . (b ). . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . (d) by appointing a receiver; or (e ). . . . . . . . . . . . . . . . Under sec. 51 (d) of the Civil Procedure Code a decree could be executed by appointing a receiver unless any limitations are prescribed. Mr. Vin has not been able to show that any limitations are prescribed. The lower appellate Court was right in holding that a receiver could be appointed to realise rent from tenants in possession of immovable properties of the judgment debtor under sec. 51 (d) of Civil Procedure Code. ( 7 ) IN the result appeal fails and is dismissed with costs. .