JIBON KRISHNA MUKHERJEE,& ANOTHER v. NEW BHEERBHUM COAL CO. LTD. & ANOTHER
Citation: [1960] 2 S.C.R. 198; 1959 INSC 145
Court: Supreme Court of India
Bench: P.B. GAJENDRAGADKAR , K. SUBBA RAO, J.C. SHAH
Judgment date:
Case summary
1959 INSC 145. Supreme Court of India judgment dated 1959-11-10. JIBON KRISHNA MUKHERJEE,& ANOTHER v. NEW BHEERBHUM COAL CO. LTD. & ANOTHER. Read the...
Judgment text
JIBON KRISHNA MUKHERJEE,& ANOTHER ~ . NEW BHEERBHUM COAL CO. LTD. & ANOTHER. (P. B. GAJENDRAGADKAR, K. SuBBA RAO, and J. c. SHAH, JJ. ) Decree, execution of-Receiver appointed and authorised by· court to sell property-Sale by receiver-Application to set aside such sale on deposit-Maintainability-Code of Civil ProcedMe (Act v of I908), SS. 5I, I5I, 0. 2I, r. 89. On the judgment debtor's default in paying the agreed instalments of the decretal amount a receiver was appointed by the Court in execution of the decree under s. 51 of the Code of Civil Procedure with power to sell the judgment debtor's property either by private agreement or public auction. The receiver entered into an agreement 'vith respondent No. 2, a third party, for the sale of the property for a larger sum than the decretal amount on the condition that the sale should be confirmed by the High Court.
The High Court allowed the decree holder's application for confirmation of the sale by the receiver but allowed the judgment debtor time to pay the balance of the decretal amount in which case the sale \Vas not to be coniirmed. The judgment debtor made partial payments but failed to pay the entire decretal amount \Vi thin the prescribed time and in spite of several opportunities given to him by the Court to do so. He ultimately applied to the Court ! or cancellation of the agreement for sale by the receiver and prayed for leave to deposit tne whole balance of the decretal amount. 1 his was disallowed by a Single Judge and on appeal by a Division Bench of the High Court. The main question that arose for decision both in the High Court, and Supreme Court, on appeal by special leave, was whether the provisions of 0. 21, r. 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by th' Court. The High ~Court answered this question in the negative.
Held, that the High Court was right in refusing to entertain-the appellant's application> nnder 0. 21, r. 89. In a sale by the receiver he is not required to issue a proclamation of sale as required by 0. 21, r. 66 o! the Code of Civil Procedure and as such the provisions of 0. 21, r. 89 under which a sale proclamation is an essential element, do not apply to a sale held by him. M inatoonnessa Bibee and Others v. Khatoonnessa Bibi and Others (1898) 1. L. R. 21 Cal. 479, Golam Hossein Cassin Arif! v. Fatima Begam (1910) 16 C. W. N. 394, Jogemaya Dasee v. Akhoy Coo,nar Das (1912) I. LR. 40 Cal. 140, Basir Ali v. Hafiz Nazir Ali (1916) I. L. R 43 Cal. 124 and Rani Bala Bose and Othersv. Hirendra Chandra Ghose and Others (1948) 52 C. W. N. 739, considered. - S. C. R. SUPREME COURT REPORTS 199 Held, further, that the High Court was right in holding that I959 the court's jurisdiction could not be invoked in favour of the appellant under s.
151 of the Code of Civil Procedure in view of J ibon Krishna the fact that he committed repeated defaults in spite of several Mukherjes opportunities given to him by the Court to pay the balance of the v. decretal amrmnt. and that this court would not interfere with the New Bheerbhum discretiol) exercised by the High Court in such circumstances. Coal Co. Ltd. The order of the High Court confirming the sale by the receiver was not a conditional one. It gave an opportunity to the judgment debtor to pay the decr~tal amount in the manner prescribed by it failing which the sale was to stand confirmed. There is no scope for applying the principle that the court had inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated, as faid down· in S. M. Sudevi Devi v. Sovaram Agarwallah (1906) IO C. W. N. 306. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 342 of 1959.
Appeal by special leave from the jurlgment and decree dated April 29, 1959, of -the Calcutta High Court, in appeal from Original Order No. 188 of 1958. H. N. Sanyal, Additional Solicitor-General of India. T. S. Venkatarama, K. R. Sarma andK. R. Chaudhry, for the appellants. S. N. Mukherjee, for respondent No. L N. C: Chatterjee, S. K. Acharyya and R. S. Narula, for respondent No. 2. 1959. November IO. The Judgment of the Court was delivered by ·' .. GA. JENDRAGADKAR J. -The principal question which Gajendragadkar J . which this appeal by special leave raises for· our decision is: Whether the provisions of 0. 21, r. 89 of the Code of Civil Pl'Ocedure apply to a sale held by a receiver appointed by the court and authorized to sell the property in question. The learned Single Judge on the Original Side of the Calcutta High Court as well as the Division Bench of the ;said High Court have answered this question in the negative.
The appellants contend that the view taken by the Calcutta High Court is erroneous. This question arises in this way. In Suit No. 1024 of 1953 on the Original Side of the Calcutta High -) Court a decree for the payment of Rs. 18,497 -15-0 was 200 SUPREME COURT REPORTS [1960(2)] passed by consent in favour of the New Bheerbhum Coal Co. Ltd. , (hereinafter called respondent 1) and against the Benares Ice Factory Ltd. , (hereinafter called appellant 2) on December 5, 1955. The decree provided for the payment of the decretal amount by six equal instalments and it directed that in case of J. default of any one of the instalments the balance of the decretal dues would at once become payable. A first charge was created by . the decree on the plant and machinery of appellant 2 for securing the payment of the decretal amount. A default having occurred in the payment of instalments respondent 1 applied for the execution of the decree on April 10, 1956.
On this application an interim order was made on May 17, 1956, appointing Mr. A. K. Sen, as Receiver of the properties charged. The said application was finally decided by an order passed on May 30, 1956, by which the appointment of the receiver was confirmed and he was given liberty to sell the said properties either by private treaty or by public auction. It is common ground that the receiver took possession of the said property in December 1956. Subsequently, on March 10, 1958, the receiver entered into :in agreement with Sukhlal Amarchand Vadnagra (hereinafter called respondent 2) for' the sale of the said property for Rs. 30,000. The terms and conditions embodied in the said agreement provided inter alia that within one month from the date of the receipt by the purchaser of intimation from the receiver that the sale hud been confirmed by the High Court the purchaser shall deposit with the said receiver the full price of Rs. 30,000. } (1948) 52 C. W. N. 139. • • hold that r.
89 of 0. 21 does not apply to such a sale and that the High Court was right in rejecting the ·appellants' claim based on the said rule. The result is the appeal fails and is dismissed with costs. New .. A_p_peal dis111issed. Gajendragadkar • CT. A. CT. NACHIAPPA CHETTIAR AND OTHERS, v. CT. A.. CT. SUBRMIANIAJl. I CHETTIAR. . (P. B. GAJENDRAGADKAR, K. SunBA RAO and J. c. SHAH, JJ. ) Arbitration-Partition suit-Preliminary decree-Appeal to· High Coitrt~Reference to arbitration by Trial Court-Competency- Foreign immoveable properties ·excluded by preliminary decree- JV hether reference and award include such properties-Construction-lndian Arbitration Act, I940 (X of I940), s. 2I.
In a suit for partition of the j'lint 'family properties filed by the respondent against his brother and his sons, appellants' I to 5 respectively, the latter while admitting the relationship of the respondent and his half share to the family properties, pleaded, inter alia, that the court had no jurisdiction to divide the imlnove-able properties situated in Burma and in the Indian State of Pudukottai. The trial court passed a preliminary decree exclud-ing from its operation the aforesaid immoveable, properties. Against the preliminary decree appeals were preferred before the High Court by the several parties on various grounds, but in his appeal the respondent did not challenge the finding of the trial court that it had no jurisdiction to deal with foreign immoveable properties. During the pendency of the appeals, on the joint application made by the parties, the trial court made an order referring for determination by the two arbitrators .
named by them" all the matters in dispute in the suit and all matters and proceedings connected therewith". In due course the arbitrators gave an award which was then filPd in the trial court. As regards immoveable properties in Pudukottai the award recited that since the parties had separated and the properties in suit before the arbitrators had been· actually divided by metes and hounds, the two branch•s shall enjoy the Pudukottai properties in equal halves; while with reference to the properties in Burma the arbitrators asked the parties to hold the documents of title half and half for safe custody and added that when the parties decided to divide the properties all the documents would have to be
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