Subramania Naicker vs Vasu Naicker

Swamikkannu, J.—Civil Revision Petition No. 4561 of 1981 is filed against the judgment in Civil Miscellaneous Appeal No. 10 of 1979 on

the file of the learned Subordinate Judge of Vellore. This appeal was preferrea against the order in O.E.A. No. 254 of 1975 in Original Suit No.

29 of 1980 on the file of the learned District Munsif of Ranipet. Civil Revision Petition No. 4529 of 1981 is filed against the judgment in Civil

Miscellaneous Appeal No. 11 of 1979 on the file of the learned Subordinate Judge of Vellore. This appeal was preferred against the order in

O.E.A. Mo. 301 of 1975 in Original Suit No. 29 of 1970 on the file of the learned District Munsif of Ranipet. In both these revision petitions the

Plaintiff is the revision Petitioner. Civil Miscellaneous Appeal Nos. 10 and 11 of 1979 were disposed of by a common judgment by the learned

First Additional Subordinate Judge of Vellore on 24th August, 1981.

O.E.A. No. 556 of 1975 was a petition filed by the first Defendant under Order XL, Rule 3 and Section 151, CPC to direct the Plaintiff

(revision Petitioner herein) to render accounts on the ground that he was appointed as a receiver in O.E.A. No. 1708 of 1970 in O.E.A. No. 631

of 1970 in Original Suit No. 29 of 1970 and that as a Receiver he is bound to render the accounts. The Plaintiff resisted the application on the

ground that though he was appointed as Receiver he did not assume charge as Receiver, that he purchased the property of the first Defendant, as

an assignee of the right to recovery in pursuance of a money decree obtained by him against the first Defendant and that the purchase by him was

in his individual capacity through a suit in Original Suit No. 634 of 1970 which was a suit for specific performance and in pursuance of the decree

he executed the same and took delivery of the property also, that the first Defendant is estopped byres judcata from questioning the previous

transaction and that the application was not maintainable.

O.E.A. No. 301 of 1975 was a petition filed by the Plaintiff u/s 151, CPC to discharge him from the Receivership on the ground that though he

was appointed as Receiver, in pursuance of the attachment right of the Respondent to get reconveyance in respect of his house from one

Munuswami Naicker, he purchased the property in execution of a decree obtained by him in original suit No. 634 of 1970 filed by him in his

individual Capacity, that the sale having beer, confirmed by the High Court, the first Defendant cannot question the same, and that taking advantage

of the existence of the order of appointment of the Plaintiff on 17th January, 1970 the first Defendant is giving trouble and that he may, be

discharged from Receivership.

The first Defendant resisted the application on the ground that the Plaintiff filed the suit Original Suit No. 634 of 1970 only as a Receiver, that he

purchased the property on behalf of the first Defendant herein and that the Plaintiff is bound to rendrer accounts as Receiver.

The learned District Munsif of Ranipet, who enquired into both these applications, after contest dismissed O.E.A No. 256 of 1975 and allowed

O.E.A. No. 301 of 1975. Aggrieved, by the above order of the learned District Munsif the first Defendant preferred Civil Miscellaneous Appeals

Nos. 10 and 11 of 1979 before the lower appellate Court.

On the first point whether the Plaintiff has been a Receiver and acted as such throughout and is entitled to tender accounts, the lower appellate

Court found that the Plaintiff had been a receiver and acted as such throughout and liable to render accounts and under point No. 2 whether the

Plaintiff is entitled to be discharged from receivership, the lower appellate Court held that the Plaintiff is not entitled to be discharged from the

receivership, until be renders accounts. Therefore, the lower appellate Court found that the judgment and decrees of the learned District Munsif of

Ranipet could not be sustained. Both the appeals were allowed, setting aside the judgments and decrees of the learned District Munsif of Ranipet

in O.E.A. Nos. 256 and 301 of 1975 with costs of the first Defendant throughout. Aggrieved by the above judgment and decrees of the lower

appellate Court, the Plaintiff has come forward with the above revision petitions.

Mr. D. Krishnan, learned Counsel for the revision Petitioner, inter alia contends that Civil Miscellaneous Appeals Nos. 10 and 11 of 1979 are

not maintainable before the lower appellate forum and the entertainment of these two appeals by the lower appellate forum, viz., the Court of the

Subordinate Judge of Vellore, is erroneous and as such the judgment and decrees are .liable to. be set aside u/s 115, Code of Civil Procedure. In

this regard, Mr. D. Krishnan points out the provisions of Section 2, CPC which reads as follows:

(2) decree means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the

parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemea to include the

rejection of a plaint and the determination of any question within (The words Section 47 or omitted by Amending Act CIV of 1976) Section 144,

but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any Order of dismissal for default. Explanatory A decree is preliminary when further proceedings have to be taken before the suit can be

completely dispose of. It is final when such adjudication completely disposes of the suit. It may be party preliminary and partly final.

The next Section that Mr. D. Krishnan referees to is Section 47, Code of Civil Procedure. Section 47, CPC reads as fellows:

Questions to be determined by the Court executing decree:

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution,

discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) Omitted by Amending Act CIV of 1976.

(Sub. 2 before Amending Act CIV of 1976).

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a preceding under this Section as a suit or a suit as a proceedings

and may if necessary order payment of any additional Court-fees).

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section,

be determined by the Court.

(Sub. by Amending Act CIV of 1976)

Explanation- I: For the purposes of this Section, Plaintiff who a suit has been dismissal and a Defendant against whom a suit has been dismissed

are parties to the suit.

Explanation- II: (a) For the purpose of this Section'' a purchaser of property at a sale in execution of a decree .shall be deemea to be a party to the

suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchased or his representative shall be deemed to be questions

relating to the execution, discharge or satisfaction of the decree within the meaning of this Section.

(Explanation before Amending Act CIV of 1976)

Explanation: For the purposes of this Section, a Plaintiff whose suit has been dismissed, a Defendant against whom as it has been dismissed and a

purchase at a sale in execution of the decree are parties to the suit.

By referring to the above provision of Section 47 Code of Civil Procedure. Mr. D. Krishnan submits that both the appeals, Civil Miscellaneous

Appeals No. 10 and 11 of 1979 where preferred before the lower appellate Court only under the above provisions of Section 47 CPC and the

entertainment of the appeals by the lower appellate Court under the said provisions is wrong. He submits that prior to the Amending Act 1976 by

the Amending Act CIV of 1976, any order passed in the execution petition is appealable under the provisions of Section 47 CPC but subsequent

to the Amending Act CIV of 1970 such an appellate jurisdiction is not available to the aggrieved party in an execution petition

By referring to Section 96; CPC Mr. D. Krishnan submits that inasmuch as the words Section 47 or have been omitted by the Amending Act

CIV of 1976, the aggrieved party cannot prefer an appeal u/s 47; CPC as it has been done in the present appeals before the lower appellate

Court and the remedy of the aggrieved party is only by way of preferring revision to the High Court u/s 115; Code of Civil Procedure.

Section 96; CPC reads as follows:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from

every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.''

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature congniszable by Courts of Small Causes, when the

amount of value of the subject matter of the original suit does not exceed three thousands rupees.

On the other hand, Mr. N. Sivamani, learned Counsel for the first Defendant, the Respondent in both these revision petitions, submits that

though Order XL, Rule 3, CPC is mentioned in the petition, O.E.A No. 256 of 1975, filed by the first Defendant, the contents and the prayer of

the said petition fall equally within the provisions of Order XL, Rule 4 CPC and as such when the learned District Munsif had entertained the

petition O.E.A. No. 256 of 1975 and disposed of the same, it should be taken as one entertained under Order XL, Rule, 4 Code of Civil

Procedure. As such the order of the learned District Munsif can be the subject-matter of appeal before the lower appellate forum. In support of his

contention, the provisions of Order XL, Rule 1, Order XL, Rule 3 and Order XL, Rule 4, CPC are all relied on by Mr. N. Sivamani. He also

submits that by entertaining the application by the Court in which it is instituted though wrong provisions of law is quoted, when it is seen that that

court is eligible to entertain the petition under some other provisions of law and actually render an order under the said provision it should be held

that the Court had entertained the petition under the relevant order or rule. In the instant case though O.E.A. N. 256 of 1975 had been filed under

Order XL, Rule 3, CPC Rule 4 ought to have been mentioned in the petition. But by such mistake, it cannot be said according Mr. N. Sivamani,

that the learned District Munsif had exercised a jurisdiction which is not vested with him. On the other hand he did exercise the jurisdiction vasted

with him and render an order actually under Order XL, Rule 4 and Section 151, Code of Civil Procedure. Therefore, the order in O.E.A. 256 of

1975 according to Mr. N. Sivamani is appealable before the lower appellate forum, under Order XLIII, Rule 1(s) which reads as follows:

an order under Rule 1 or the 4 of Order XL

So far as O.E.A. No. 3 of 1975 the petition filed by the Plaintiff u/s 151. CPC to discharge him from the Reccivership is concerned Mr. W.

Sivamani learned Counsel for the Respondent in this petition contends that though the petition had been filed u/s 151 Code of Civil Procedure, it

has to be constructed as one which had been filed under Order XL, Rule 1 Code of Civil Procedure, which reads as follows:

Where it appears to the Court to be just and Convenient, the Court may be order:

(a) appoint a receiver of any property, whether before or alter decree;

(b) remove any person from the possess on or custody of the property;

(c) commit the same to the possession, custody or management of the receiver, and

(d) confer upon the recover all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and

improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution

of documents as the owner himself has, or such of those powers as the Court thinks fit.

Though the provision of Rule 1 of Order XL is with respect to appointment of receivers, a reading of the Section, according to Mr. N. Sivamani

would also com plate the provision relating to the discharge, removal etc., of a Recover-Advocate pointed under Order XL Rule, 1, Code of Civil

Procedure. In this regard Mr. N. Sivamani submits that though the learned District Munsif bad entertained O.E.A. No. 301 of 1975 filed by the

Plaintiff u/s 151, CPC yet it should be constructed as a petition under Older XL, Rule 1, CPC regarding the discharge of the Recover. He further

submits that having entertained the said petition and p. enounced an order, it is submitted by Mr. N. Sivamani thai the aggrieved party can come by

way of appeal to the lower appellate for an because the order pronounced under Order XL, Rule, 1, CPC is appealable under Order XLIII, Rule

1(2). In this regard, the following observation of Panchapakesa Ayyay, J. in Muthuswami Naicker and Others Vs. Ramalinga Naicker, is relied on

by Mr. N. Sivamani.

In modern times, the more fact that a Section, of law rightly applicable to a matter is not quoted, and another see on of law not so clearly

applicable to the matter is quoted, will not bar the party from relying on the right Section of law, if it is not totally irrelevant, or unconnected with

the, previous Section. After all it is, the Courts which lay down the law am are supposed to be the reservoirs of law and not parties who file

petitions.

Mr. N. Sivamani also refers to the decision in Venkatalingatna Nayanion Varu v. Venkatarama Rao (1921) 13 L.W. 367, and relies on the

following observations in Support of his contention.

When the IXth Defendant came on record be made an application for the discharge of the receiver mainly on the ground that had acquired the

rights of the first and second Defendant, that those was no longer any dispute which would lead to mismanagement or waste and that therefore the

continuance of the Receiver became unnecessary. The learned Subordinate Judge accepted this view of the situation and passed an order

discharging the Receiver. It is contended by the learned Advocate-General that since the Receiver was appointed by he consent of the parties, be

could not be discharged until the term nation of the proceedings. It is however, the law, as laid down in Kerr on Receivers, page 287 that ""if in the

course of the proceedings of the connutance of a Receiver became unnecessary, be will be discharged.

The above observation of the High Court in the said decision is relied on by Mr. N. Sivamani to show that though in the said case the

maintainability of the appeal was questioned the appeal was entertained by this Court and an order was passed, on merits treating the aspect as

one lying within the purview of the provisions of Order XL, Rule 1 Code of Civil Procedure. As a matter of fact, the note of the decision reported

in Venkatalingama Nayanim. Varu Vankatarama Rao reads as follows:

Code of Civil Procedure (V of 1908), Order XL, Rule 1 -

Receiver appointed by consent pending suit-If and when may be discharged during the pendency of proceedings.

A Receiver in a suit even though he may have been appointed with the consent of parties could be discharged before the termination of the

proceedings if it appears that it could be done without injury to the estate.

By referring to the above observation in the said decision as well as the provisions mentioned by him, Mr. N. Sivamani would contend that though

O.E.A. No. 301 of 1975 was filed by the Plaintiff u/s 151 CPC yet it has to be construed that the same had been filed by the Plaintiff under Order

XL, Rule 1, CPC for discharging himself from the liabilities (c)1 the receivership. In the regard, both Mr. D. Krishnan as well as Mr. N. Sivamani

would pointout that there is no provision in the CPC under Order XL, dealing with discharge if a receiver. In this regard, it is relevant to note that

by the High Court Amendment: (Madras) Enforcement of receiver''s duties under Order XL, Rule 4 is dealt with as follows:

Enforcement of receiver''s duties-where a receiver:

(a) fails to submit his accounts at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or

(c) occasions less to the property by his wilful default or gross negligence

The Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be

done from him or any loss occasion need by him, and shall pay the balance (if any) to the receiver.

(High Court Amendment) Madras (substitute the following Rule for Rule 4.)

(4) Enforcement of receiver''s duties (1) If a receiver fails to submit his accounts at such period and in such form as the Court directs, the Court

may order his property to be attached until he duly submits his account in the form ordered.

(2) The Court may at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion at any time

make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss of the property has

been occasioned by his wilful default or gross negligence and may order the amount found due or the amount of the loss so occasioned to be paid

by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceedings and the receiver shall be

made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver but the cost of his

appearance shall be borne by the surety himself unless the Court otherwise directs:

Provided that the Court may, where the account is disputed by the parties and is of a complicated natures or where it is alleged that loss has been

occasioned to the property, by the wilful default or gross negligence of the receiver refer the parties to a suit. In all such cases the court shall state

in writing its reasons for the reference.

(3) If the receiver fails to pay any amount which has been ordered to pay under Sub-rule (2) of this Rule within the period fixed in the order the

Court may direct such amount to be recovered either from the security (if any) furnished by him under Rule 3, or by attachment and sale of his

property, or if his property has been attached under such Rule (1) of this rule, by sale of the property so attached and may apply the proceeds of

the sale to make good any amount found due from him or any loss occasioned by him and shall pay the balance (if any) of the sale proceeds to the

receiver (1933).

On a careful reading of the provisions of law, it is seen that when the trial Court had entertained O.E.A. No. 256 of 1975, though the provision

even by the first Defendant while instituting the same was one under Order XL, Rule 3, yet the contents and prayer made therein by the first

Defendant clearly falls within the provisions of Order XL, Rule 4, Code of Civil Procedure. Therefore, the appeal lies before the lower appellate

Court under the provisions of order XLIII, Rule 1(s) Code of Civil Procedure. Similarly, when O.E.A. No. 301 of 1973 was filed by the Plaintiff

u/s 151 CPC to discharge him from the receivership yet it is to be held that be had instituted the said petition Under Order XL, Rule 1, CPC which

deals with appointment of Receivers, which includes also the discharge of Receiver, because there is no provision under Order XL, deeling with

the discharge of receiver as it is. Section 151 CPC is a general provision, which is made applicable when there is no other specific provision

available for initiating the proceedings to get remedy by the aggrieved party in a Civil Court. Therefore, when Section. 151 CPC quoted, it is for

the Court to apply its mind and see whether the prayer could actually fall within the special provision of the CPC and in this view when it is seen

that the above two petitions had been entertained under the provisions of Order XL, Rule 1 CPC with respect to the discharge of receivership by

the Plaintiff and the other petition for rendering account under Order XL, Rule 4, Code of Civil Procedure, certainly the orders that (sic) were

announced by the executing Court are appealable under Order XLIII, Rule 1(3), Code of Civil Procedure. Accordingly, the point urged by Mr. D.

Krishnan, on behalf of the revision Petitioner in both the revision petition cannot be upheld. On the other band, the appeals were maintainable and

they were determined on the points named by it. On a careful perusal of the appellate judgment, questioned under these two revision petitions, this

Court finds there is no infirmity in the judgment. Therefore, both the evil revision petitions are dismissed. But under the circumstances, there is no

older as to costs.