The events antecedent to the order by which the Court below has refused the application of the Petitioner for rateable distribution under sec. 73 of the Code of 1908, are not the subject of controversy between the parties. In execution of a decree held by the Roys against the Mookerjees and a Receiver appointed by this Court, the properties owned by the judgment-debtors were sold on the 20th June 1910. One-fourth of the purchase-money was deposited on that date and the balance was paid into Court by the purchaser on the 1st and 2nd July following. Sarat Kumar Banerjee who had previously obtained a decree against the judgment-debtors Mookerjees on the 25th January 1905, then made an application for rateable distribution on the 18th June 1910. Objection was taken by the Receiver that as leave had not been obtained from the Court by which the Receiver had been appointed, the application could not be entertained. The Subordinate Judge gave effect to this contention and dismissed the application. We are now invited to hold that the order of the Subordinate Judge is erroneous on three grounds, namely, first, that no leave was necessary because leave had already been granted to the execution creditors at whose instance the sale took place; secondly, that if leave was necessary, such leave had been in substance granted by this Court, by two orders made on the 7th April 1905 and the 4th May 1908; and, thirdly, that if leave was necessary and if it be held that leave has not been granted, opportunity should be afforded to the Petitioner at this stage to obtain the requisite leave.

In support of the first contention, it has been argued that as leave was granted by this Court to the Roys to proceed with execution of their decree against the Mookerjees and the Receiver, it was not necessary for any other execution-creditor of the Mookerjees to apply for leave in order to enable him to obtain a rateable distribution under sec. 73 of the Code of 1908. It has been argued that the sale-proceeds are in the custody of the Court, and that, consequently, the grant of the application of the Petitioner for rateable distribution would not in any way interfere with the possession of the Receiver. In support of this view, reliance has been placed upon the case of In re Mundslay & Sons and Field(1). In our opinion, the view put forward by the Petitioner cannot possibly be supported. It is well settled that a Court will not permit execution against property in the hands of a Receiver till leave has been obtained from the Court by which the Receiver was appointed. [See the authorities reviewed in the judgment of this Court in the cases of Levina Ashton v. Madhabmoni Dassi(2) and Jotindra Nath v. Sarfaraj Mia(3)] But it has been contended in this case that the fund against which the Petitioner desires to proceed is not in the hands of the Receiver, that although it belongs to the Receiver, it is in the custody of the Court, and, the consequently, if the application is granted, the principle mentioned will not be contravened. In our opinion, there is no foundation for this contention. The case of In re Mundslay & Sons and Field is clearly distinguishable. There it was ruled that where the Court appoints a Receiver over property out of its jurisdiction, the Receiver is not put in possession of such foreign property by the mere order of the Court. Something further has to be done, and until that has been done in accordance with the foreign law, any person, not a party to the action, who takes proceedings in the foreign country for the purpose of establishing a claim upon the foreign property is not guilty of a contempt of Court on the ground of interference with the Receiver's possession or otherwise. The subsequent decisions in In re Derwent Rolling Mills Company(4) and In re West Cumberland Iron and Steel Company(5) show, however, that this principle does not apply to cases in which the assets are within the jurisdiction of the Court. In the case before us, it cannot be disputed that a portion of the assets held by the Court belongs to the Receiver. If the claim of the Roys and the Maharajah of Burdwan, both of whom have obtained leave to proceed against the Receiver, are satisfied, there will still remain a balance which the Receiver will be entitled to withdraw, unless the Petitioner before us is allowed to prosecute his claim for rateable distribution. It is manifest, therefore, that the prosecution of the application made by the Petitioner must result in interference with property belonging to the Receiver. Although nominally the property in the case before us is in the custody of the Court, there is no room for controversy that the Court holds possession for the benefit of the Receiver and is bound to make over the balance to him after the claims of the two creditors mentioned shall have been satisfied. The view we take is supported by the decision in Ames v. The Trustees of the Birkenhead Dock(6), the principle of which is clearly applicable to the circumstances of the case before us. Reference was also made to some observations in the case of In, re Clarke(7) in which it was ruled that an order appointing a Receiver does not relate back and that the Receiver must have possession of the goods before the principle invoked can be applied. In the case before us, however, as we have already explained, the funds are held by the Court for the bent fit of the Receiver and after the claims of the creditors who have obtained leave are satisfied, the Receiver will be entitled as a matter of right to take out the surplus and apply it for the purposes of the litigation in which he was appointed. Under these circumstances, it is impossible to hold that the Receiver has not such possession as would entitle him to resist the enforcement of a claim by a creditor who has not obtained leave to proceed against him. We must, therefore, hold that it was necessary for the Petitioner to obtain leave from the Court by which the Receiver was appointed before he could be permitted to prosecute his application against him under sec. 73.

In support of the second ground it has been urged that the requisite leave has been in substance obtained: and reliance has been placed upon two orders made on the Original Side of this Court on the 7th April 1905 and the 4th May 1908. The first order was made after the Petitioner had obtained a transfer of his decree from the Hughly Court to this Court for execution. The order mentioned was a prohibitory order by which the Receiver was enjoined not to deal with the properties in his custody, until the further order of this Court. This order must be taken to have been made under sec. 272 of the Code of Civil Procedure of 1882 (corresponding to Order 21, Rule 52, of the Code of 1908). It is worthy of note that even an order of this description cannot be made without leave of the Court by which the Receiver was appointed [Mahommed Zohwuddin v. Mahommed Noorooddeen(8) and Kahn v. Ali Mahomed Haji(9)]. We are not informed whether leave was obtained before the order was made; but as the order was made by the very Court by which the Receiver was appointed, express leave might perhaps be deemed unnecessary. It is clear, however, that a prohibitory order under sec. 272 of the Code of 1882 can in no sense be regarded as equivalent to a grant of leave to the decree-holder to execute his decree against the properties in the hands of the Receiver. The order merely directs the Receiver not to deal with the properties until the further orders of this Court; admittedly, no such supplemental orders were ever issued. In our opinion, the order must be unreasonably and considerably strained, before it can be interpreted to mean the grant of leave to the Petitioner to prosecute his application. The second order on which reliance is placed is one made on the 4th May 1908. It appears that upon the application of the Petitioner, this Court directed the Receiver to sell some of the properties inclusive of those subsequently sold in the Hughly Court, and then to satisfy the claims out of the sale, proceeds. It has been suggested that this order is equivalent to the grant of leave to the Petitioner to proceed against the properties in the hands of the Receiver. But the order in question does not admit of the interpretation suggested. If the Receiver had proceeded to carry out the order, the sale would have taken place under the guidance of the Court. On the other hand, the sale which has taken place in the Hughly Court is not the subject of controversy in this Rule, and the property against which the Petitioner now seeks to proceed represents the sale-proceeds realised at that sale. We are of opinion that it would not be right to construe the order of either the 7th April 1905 or the 4th May 1908, as an order granting leave to the Petitioner to proceed with execution against the properties in the hands of the Receiver. It may be pointed out that Courts have been generally, reluctant to allow execution to proceed against the properties in the hands of a Receiver until leave has expressly been granted for this purpose. This is well illustrated by the case of Morris v. Baker(10). In this case, although a Receiver had been made party to a suit after leave had been granted to bring an action for recovery of land against him, Angel v. Smith(11), Hawkins v. Gathercole(12), In re Batters Estate(13), it was ruled that before a writ of possession would issue, fresh leave of the Court must be obtained. Minet v. Johnson(14), Under these circumstances, we must hold that it is necessary for the Petitioner to obtain express leave entitling him to proceed against the property in the hands of the Receiver, Nor can the Petitioner justly complain of any hardship in this matter, for it is not the course of the Court to refuse liberty to try a right claimed against its Receiver, unless it is perfectly clear that there is no foundation for the claim, Lane v. Capsey(15).

In support of the third ground, it has been urged that the doctrine recognised by this Court in the case of Banku Behati Dey v. Harendra Nath Mukerjee ought to be extended and that an opportunity should be afforded to the Petitioner to obtain the requisite leave even at the present stage of the proceedings. In answer to this contention, it has been argued on behalf of the Receiver that the application is made too late, and that leave ought to have been sought at least during the pendency of the proceedings in the Court below. In our opinion, there is considerable force in the contention of the Receiver; but we are satisfied that, on the whole, it ought not to prevail. During the pendency of the proceedings in the Court below, the Court was bound to apply the rule laid down in the case of Pramatha Nath Ganguly v. Khetter Natk Banerjee in which it had been ruled that if proceedings have been commenced without leave previously obtained, they could not be validated by the subsequent grant of leave during their pendency. Consequently if even the Petitioners had obtained leave during the pendency of the proceedings in the Court below, it would have been of no avail, because that Court would have been obliged to apply the erroneous rule laid down in Pramatha Nath v. Khetter Nath which has been dissented from only recently in The Maharajah Of Burdwan… v. Apurba Krishna Roy…Opposite Party.(18). There can, in our opinion, be no doubt that the rule that ought to be applied in the special and peculiar circumstances of this case is the one laid down in the case last-mentioned which is in accord with the view taken in various classes of cases reviewed in the judgment of this Court in the case of Jagat Tatini Dassi v. Nabagopal Chaki(19). Thus upon the authority of the Judicial Committee in Nawab Muhammad Azmat Ali Khan v. Mussammat Lalli Begum(20), a suit relating to a grant of property within the meaning of the Pensions Act, 1861, need not be dismissed, because no certificate had been obtained before the commencement thereof, but the suit might be suspended upon an objection that no certificate had been obtained and might proceed when the certificate had been obtained and delivered to the Court. A similar principle was adopted by a Full Bench of this Court with regard to sec. 78 of the Land Registration Act in Alimuddin Khan v. Hira Lall Sen(21) and was subsequently extended to cases under sec. 60 of the Bengal Tenancy Act in Harehkrishna Das v. Brindabun Shaha(22), Belchamber v. Nawab Sir Syed Hussan Alli(23) and Abdul Khair v. Meher Ali(24). The same principle was applied by the Court of Appeal in Rendall v. Blair(25) in which it was held that where the consent of the Charity Commissioner was necessary for the institution of a suit, it was not obligatory upon the Court to dismiss a suit instituted without such consent; the suit might be stayed to enable the Plaintiff to secure the consent which, as a matter of duty, ought to have been obtained in the first instance but is, as a matter of fact, obtained at last. A similar principle has also been applied to cases under sec. 4 of the Succession Certificate Act, Hafizuddin v. Abdool(26), Shital Chandra v. Manik Chandra(27), Kammathi v. Mangappa(28), Torregrosa v. Pragji(29), Balkishan v. Wagarsing(30), Behari Lal v. Majid Ali(31). Under these circumstances, we are of opinion that the demands of justice require that the Petitioner should be allowed so opportunity to obtain the requisite have even at the present sage of the proceeding.

The result is that this rule is made absolute, the order of the Court below discharged, and the case remitted to the Subordinate Judge who will proceed to deal with the plication on the merits after the Petitioner has been afforded reasonable opportunity to obtain the necessary leave from this Court. As, however, the substantial contentions of the Petitioner, namely, that no leave was necessary, and that if any leave was necessary it had been obtained, have failed, there will be no order as to the costs of this Rule. The sale-proceeds will be retained in Court and will not be distributed amongst the other claimant's till the present Petitioner has been afforded an opportunity to obtain the leave of this Court.

Rule made absolute.