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Judgment
Ramanujam, J.—This appeal arises out of an order passed by the lower Court dismissing the application filed by the Appellant-judgment-
debtor in Original Suit No. 51 of 1961 on the file of the lower Court seeking the dismissal of Execution Petition No. 477 of 1972 filed by the
decree holder, the Respondent herein, for delivery of suit properties as per the terms of the decree.
This matter has a long history and it is necessary to set out the same in brief for the purpose of clear understanding of the rival contentions put
forward by the parties in this appeal. The Appellant herein filed a suit Original Suit No. 26 of 1955 on the file of the Sub-Court, Tiruchirappalli
against her brother one Palaniyandi for recovery of possession of 32 acres of wet and dry lands in Pattavaithalai village on the ground that the said
lands had been granted as Devadasi inam and that as the adopted daughter of the previous Devadasi Angamuthu she has become entitled to the
said inam lands. That suit was decreed on 16th March 1957 under exhibit A-l pursuant to the decree she took possession of the properties under
exhibit A-2, dated 19th August 1958. Palaniyandi, the Defendent in the said suit filed an appeal to this Court in Appeal Suit No. 224 of 1957-In
that appeal the Appellant herein had been appointed as a party receiver of the properties and she continued to be in possession.
During the pendency of that appeal, the Respondent herein who is the Devasthanam had initiated proceedings u/s 101 of the Hindu Religious
and Charitable Endowments Act for recovery of possession of tie suit lands from the Appellant. In those proceedings, the Appellant contended
that as she is in possession of the property as a receiver appointed by this Court, leave of this Court has to be obtained for initiating proceedings
against the receiver. Taking note of that contention, the Devasthanam approached this Court in Civil Miscclleneous Petition No. 466 of 1960 for
leave to proceed against the receiver. This Court stated that until her receivership is terminated by an order of Court, her right to remain in
possession of the property as receiver will be totally inaffected by any proceedings that may be initiated against the Appellant in her individual
capacity and, therefore, permission to sue the receiver cannot be given. Subsequently the Appeal Suit No. 224 of 1957 was dismissed on 10th
March 1961.
In the meanwhile the Respondent-Devasthanam filed a suit Original Suit No. 51 of 1961 for recovery of the properties with mesne profits of Rs.
19,500 or in the alternative for arrears of chathurbagam amounting to Rs. 4,875 on the ground that the Appellant is not the adopted daughter of
Angamuthu, the previous service holder and, therefore, she is not entitled to the properties which constitute the service inam.
The said suit was resisted by the Appellant on the ground that she is entitled to the suit properties as the adopted daughter of Angamuthu. The
said suit was decreed on 11th January 1965 holding that the Appellant was not the adopted daughter of Angamuthu and that therefore she is not
entitled to the inam properties, and directing the recovery of possession with arrears of chathurbagam. There was an appeal to this Court against
the said judgment by the Appellant in Appeal Suit No. 37 of 1965 and a cross appeal by the Respondent. In that appeal this Court held that the
Appellant has not been adopted by Angamuthu, that the Appellant''s possession of the properties was only in her capacity as a receiver and that
she was liable for mesne profits and not chathurbagam. On the basis of the said appellate decree the Respondent levied execution and sought
delivery of the properties in Execution Petition No. 477 of 1972. It is at that stage the Appellant filed an application u/s 151 of the CPC
contending (i) that the decree passed by the Court against the receiver without obtaining the leave of the Court to sue the receiver is a nullity and
inexecutable, (ii) that as her possession of the properties has been found to be in her capacity as receiver, it cannot be disturbed till after she is
discharged from the receiver.
The lower Court, however, held that sitting in execution it has no jurisdiction to declare that the decree is null and void, that the jurisdiction of the
executing Court is very much limited, that getting leave of the Court to sue the receiver is not a condition precedent for filing the suit and that in any
event, the absence of grant of leave to sue the receiver will not affect the jurisdiction of the trial Court to entertain and dispose of the suit. It also
held that once the Appeal Suit No. 224 of 1957 during the pendency of which the Appellant was appointed receiver has been dismissed the
Appellant should be deemed to have been automatically discharged from the receivership. In this view the executing Court dismissed the
Appellant''s application seeking the dismissal of the said execution petition.
Mr. T.R. Mani, learned Counsel for the Appellant contends (i) that the receiver appointed by a Court in a pending proceedings is not
automatically discharged at the conclusion of the proceedings, and that unless there is a specific order discharging the receiver by the Court which
appointed her, the receiver is entitled to continue even after the termination of the case, and that in this case, there being no order discharging the
Appellant from receivership her right to be in possession of the property is not affected even by the decree passed by the this Court in Appeal Suit
No. 224 of 1957 affirming the decree passed by the trial Court in Original Suit No. 26 of 1955 (ii) that this Court having held in Appeal Suit No.
37 of 1965 that the Appellant came into possession of the property only in her capacity as receiver, no decree for recovery of the properties from
her can legally be passed unless leave to sue the Receiver has been obtained before filing the suit or at least during the pendency of the suit and
that, in this case, no such leave having been obtained from this Court which appointed the receiver, the decree passed in the suit is null and void
and as such inexecutable.
In support of the first contention, the learned Counsel refers to the following passage in paragraph 616 at page 386 of Halsbury''s laws of
England, Simonds edition, volume XXXII which deals with the duration of appointment of a receiver made by the Court.
Duration of appointment by Court, when a receiver is appointed for a limited time, as in the case of interim orders, his office determines on the
expiration of that time without any further order of the Court, and if the appointment is ""until judgment or further order"" it is brought to an end by
the judgment in the action. The judgment may provide for the continuance of the receiver, but this is regarded as a new appointment. If a further
order of the Court, though silent as to the receivership, is inconsistent with a continuance of the receiver, it may operate as a discharge. When a
receiver has been appointed on an interlocutory application without any limit of time, it is not necessary to provide for the continuance of his
appointment in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers So,
also, the appointment of a receiver generally by the judgment in an administration action need not be continued by the order on further
consideration.
Paragraph 762 at page 449 of the same volume has also been referred to which states that unless his appointment was for a limited time only, a
receiver appointed by the Court can only be discharged by order, even though circumstances have rendered the appointment nugatory. Reference
has also been made to the following decisions. In Ramzan Moosakhan v. Abubucker AIR 1945 Sind 75 the question arose as to whether the
termination of the suit or proceeding in which a receiver was appointed will amount to an automatic discharge of the Receiver. The Court took the
view that although in certain cases by termination of the proceedings the legal occasion for the receivership ceases, the receiver''s duty to the Court
still survives and, therefore, termination of the proceedings does not operate to discharge the receiver and reference has been made in support of
that view to certain observations in Kerr on Receivers, 10th edition at page 342 and in N.D. Basu on Law and practice relating to Receivers 1937
edition. The following passage in Woodroffe''s Law relating to Receivers fourth edition at page 268 was, however distinguished:
Since the final decree in the case is generally decisive of the subject matter in controversy, and determines the right to the possession of the fund or
property held by the Receiver, it is usually the case that such decree supersedes, the functions of the Receiver since there is then nothing further for
him to act upon. If, on the other hand, the result be favourable to the Defendant the functions of the Receiver are at an end and it is proper to order
him to account and be discharged. An order of dismissal of the suit which follows on the reversal of an order appointing a Receiver clearly
operates as a discharge of the Receiver.
The Court has referred to a number of Indian authorities in support of the proposition that a receiver continues in possession until he is finally
discharged viz. Grey v. Woogramohun Thakur ILR 28 Cal. 790 Dwijendra Krishna Dutta Vs. Surendra Nath Nag Choudhury and Others,
Nadirshaw Jamshedji v. Purshoitamdas Ganpatdas AIR 1929 Bom. 279 and Muthuvira Reddi v. Venkatesa Mudali AIR 1930 Mad. 967 and
culled out a principle therefrom that as a general rule a receiver can only be discharged by an order of Court, that the receiver''s powers do not
terminate until he is discharged by the Court which appointed him, and that determination of the suit will not ipso facto discharge a receiver whose
functions must be terminated by a formal order of Court. The learned Counsel also refers to the decision in Doraivelu v. G.R. Audikesavelu AIR
1924 Mad. 557 where in a Division Bench of this Court held that the effect of the order of the Court of appeal modifying the decree of the trial
Court cannot, ipso facto discharge the receiver.
The learned Counsel for the Respondent would, however, point out that in this case the appointment of the Appellant as receiver was in an
interlocutory application pending the appeal in Appeal Suit No. 224 of 1957 that, the appointment should be taken to be till the pendency of the
appeal, and that therefore, the order appointing the receiver should be taken to be for a limited duration, that is pendency of the appeal. The
learned Counsel refers to the application filed in Appeal Suit No. 224 of 1957 for appointment of receiver pending the appeal and the order
appointing the Appellant as receiver. The application for appointment of receiver in Civil Miscellaneous Petition No. 6100 of 1958 in Appeal Suit
No. 224 of 1957 specifically says that the appointment of a receiver is sought for pending the appeal. The order, dated 20th November 1958 of
this Court though does not specifically mention the duration, the opening sentence in the penultimate paragraph of the order which is extracted
below seem to indicate that the Court intended to appoint the Appellant as receiver only till the disposal of the appeal:
This appointment however should be subjected to one safeguard, viz., that this Velambal should deposit one half of the net income from the lands
as and when realised till the disposal of the appeal.
By directing the receiver to deposit half of the rental income from the lands as and when realised till the disposal of the appeal can only show that
the Appellant''s appointment as receiver was only till the disposal of the appeal. If the Court contemplated the continuance of the receiver even
after the disposal of the appeal, such a condition restricting her liability to deposit till the disposal of the appeal would not have been made. In
addition, it is not in dispute that the Appellant, after the disposal of the appeal Appeal Suit No. 224 of 1957 applied to the Court for cancellation
of the security given by her and got it cancelled on the ground that the receivership has come to an end. Therefore, on the facts of this case I am of
the view that the appointment of the Appellant as receiver was only for the duration of the appeal and that the disposal of the appeal. Appeal Suit
No. 224 of 1957 on 10th March 1961 has put an end to her receivership.
This leads us to the second contention advanced on behalf of the Appellant. This contention will arise only if the Appellant was a receiver when
the suit Original Suit No. 51 of 1961 was filed on 12th April 1961. However I shall deal with the contention for the sake of completion.
Admittedly, leave to sue has not been obtained at any time either before the suit or during the pendency of the suit. But if the Appellant has ceased
to be a receiver on the date of the filing of the suit, the question of getting leave to sue the receiver will not arise. It has already been held that the
disposal of the appeal. Appeal Suit No. 224 of 1957 on 10th March 1961 has put an end to the Appellant''s receivership. Even assuming that the
Appellant still continues to be a Receiver as there is no order of Court discharging her from Receivership, the question is whether the decree
passed in the suit is a nullity. In Ammukutty v. Manavikraman ILR 43 Mad. 793 a Division Bench of this Court has held that, where a suit was
instituted against a receiver appointed by Court without obtaining the previous sanction, the omission to obtain such sanction does not affect the
jurisdiction of the Court. In Venkata Narasimha v. Venkatalingama ILR (1944) Mad. 717 a sale in execution of a decree of property in the
possession of the receiver without the leave of the Court which appointed him was held to be not void but voidable. In Subramania v.
Thandavamurthy ILR (1942) Mad. 933 though leave to sue the receiver had not been obtained an implied leave to sue was inferred from the
circumstance that the Court which executed the decree itself passed the order appointing the receiver and, therefore, it should be taken to be fully
aware of the appointment of the receiver when it allowed the sale of the properties in the hands of the receiver to go on and the principle of the
said decision can very well be applied to the facts of this case where this Court while disposing of Appeal Suit No. 37 of 1965 was fully aware of
the fact that the Appellant''s position was only as a receiver when it sustained the decree of the trial Court directing delivery of possession, from
which it could be implied that there is an implied leave by the Appellate Court to sue the receiver to recover the properties from him. It is well
established that leave to sue is not a condition precedent before the filling of the suit and that leave can be granted even retrospectively by the
Court.
A perusal of the judgment of this Court in Appeal Suit No. 37 of 1965 shows that the Appellant did not raise this objection based on want of
leave to sue the receiver. It should, therefore, be taken that the Appellant has waived her right. As already, stated, the want of leave to sue the
receiver will not make the decree in the suit void but it is only voidable. If the appellent, assuming that she continues to be receiver, has not raised
this objection in the appellate Court which confirmed the decree for possession the decree cannot be taken to a nullity. Apart from this, it is well-
established that the executing Court cannot go behind the decree and it can refuse to execute the decree only if it is a nullity. It is also well-
established that nullity should appear ex facie the decree and that it is not open to the executing Court to go into the validity of the decree. This was
been so held in Seth Hiralal Patni Vs. Sri Kali Nath, and Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, . In any view of the
matter the Appellant cannot succeed in avoiding the execution of the decree in this case. The appeal, therefore, fails and it is dismissed. There will,
however, be no order as to costs.