Hamida Rahaman And Another v. Jamila Khatun And Another

1. This is an appeal against two orders by which the Recelver who had been appointed in a suit was directed to take possession of certain properties movable and immovable. In the suit in question Jamila Khatun and others were the plaintiffs and Mokbul Ahmed and other were the defendants. The appellant before us are no parties to the suit; but all the parties to the suit and the two appel lasts are descendants of one Haji Sadadd in Sadagar. The suit in question is a suit for partition of the properties left ??? Khalil Ahmed Sadagar the eldest son ??? Haji Sadaddin Sadagar. When the Received was appointed in the suit and directed to take possession of the properties described in the plaint, the present appellants filed a petition in which they alleged that certain properties described in schedule 1 of their petition belonged to them both, that certain immovable properties described in schedule 2 belonged to the petitioner No. 2 and that ??? movable property described in the list which had been previously filed was in the possession of and was the property of both the petitioners. The learned Subordinate Judge who was trying the suit was of opinion that the allegation in this petition was not bona fide as regards the properties of schedule 2 of the application and the movable property. As regards the properties of schedule 1 be directed the Receiver to make an enquiry as to the truth of the allegation and ab the same time directed the Receiver be take possession of all the properties except the properties of schedule 1. That is the first order appealed against, being order No. 18 of the order-sheet dated 17th March, 1920. The second order appealed against is the order No. 25 passed on 23rd March, 1920. There the Receiver was again ordered to take possession of the properties in suit other than that as to which he had been ordered be enquire and report; and he was farther directed to bake the help of the police and, if necessary, be break open any looks on doors of houses to which the properties of which he was be take possession were reasonably believed to be.

2. In our opinion, this appeal must be allowed.

3. The lower Court, on an objection being made by persons who were no parties to the suit claiming the properties to be hairs and in their possession, was bound by clause (2) of rule 1 of Order XL become to a definite finding as to the truth of these allegations before it could make an order directmg the Receiver to bake possession of the properties. We do not think that the allegations in the petitions can be disposed of on the ground of a discrepancy between them and the contents of earlier petitions filed by one of the petitioners and others when they applied to be added as parties to the suit. As regards the movable property there was a distinct allegation of sale by auction by the National Bank and purchase by the petitioner. The petitioner should have been given an opportunity of proving the truth of this allegation. Similarly with regard to the properties of schedule 2 an enquiry should have been held into the allegation as be the purchase by the petitioner No. 2. As regards the properties of schedule 1 an enquiry has been ordered; but such an enquiry should have been held by the Court. It is not the duty of the Receiver of a property be enquire into the claim of tibia made by third parties, and the Court has no power under the Code to delegate an enquiry on this point be the Receiver. As an enquiry must be held into the allegation as regards the properties of schedule 2 by the Court, so also must an enquiry as to the allegation with regard to the properties of schedule 1 be held by the Court. It is pointed out on behalf of the respondents that although in the petition it is stated that the moveable proper-bias claimed were set out in a list previously filed yet when the pleader moved the petition in the lower Court he was unable to find that list. It appears, however, that subsequently when the Receiver tried to take possession there was no real doubt as to what properties were claimed by the petitioner appellants. If there be any diffiaclty on this point the appellants can be called on to furnish a list be bake the place of the one which could not be found when the applications ware made.

4. The result is that the appeal is allowed. We set aside the orders of the lower Court dated the 17th of March 1920 and the 23rd of March 1920 directing the Receiver be take possession of the properties claimed by the petitioners and we further direct that no such order be made in respect of any of the properties claimed until the claim of the petitioners has been duly investigated by the lower Court. The respondents must pay the appellants their costs in this appeal. We assess the hearing fee at three gold mohurs.

5. Rule No. 611 of 1920.

6. The connected appeal having been decreed, no order is necessary on this Rule.

7. Appeal allowed.