The Judgment of the Court was delivered by
Mockett, J.:— We will deal with these appeals in a common judgment, separating them, however as convenient.
Civil Miscellaneous Appeals Nos. 411 and 412 of 1942
The appellant is the decree-holder and the respondent is the judgment-debtor, the twenty-fourth defendant, in Original Suit No. 86 of 1916, Court of the Subordinate Judge of Chittoor, which was a suit by a junior member of the Kalahasti Zamindary for maintenance against the twenty-fourth defendant. On 6th June 1918, there was a, preliminary decree for Rs. 42,658-15-6 which was charged on the whole of the zamindary. In this appeal we are concerned with the sale of Peddakannali village, part of the zamindary. On 23rd November 1920, the final decree was passed. Appeals Nos. 58, 69 and 70 of 1919, were filed by various defendants against the preliminary decree. These appeals were dismissed on 3rd May 1927. Execution Petition No. 20 of 1930 was filed on 15th January 1930 and an order for sale of Peddakannali village was made on 28th March 1935. On 17th March 1934, one Srinivasa Ayyah was appointed receiver in a suit, Original Suit No. 881 of 1914, which had been filed by one Simhachellam. Srinivasa Ayyah was discharged in February 1936 and in the same month Simhachellam himself was appointed receiver. The sale proclamation regarding Peddakannali village was dated 30th September 1936. On 22nd January 1937, Simhachellam filed petitions for stopping the sale on the ground that he had been appointed receiver. This was dismissed on 1st March 1937. The sale was fixed for 26th January and on 21st January 1938 (Exhibit D-20) the District Judge of Chittoor granted leave to proceed against Peddakannali village provided it was found to be subject to a charge by the executing Court. Simhachellam was discharged from his receivership in November 1938 and on 19th July 1939, in Original Suit No. 105 of 1925, one Srinivasulu Chetty was appointed receiver by the District Court, Chittoor. The sale of Peddakannali village was actually held on 30th September 1939.
It is well to refer to some other litigation relating to this, village. Execution Application No. 385 of 1939 was filed before the Subordinate Judge of Chittoor for setting aside the sale, dated 30th September 1939. On 27th October 1939, the present respondent made this application and the learned Judge ordered him to furnish security and, on his failure to do so, the Court dismissed his application, to set aside the sale. There was an appeal, Appeal Against Order No. 411 of 1940, before King and Happell, JJ. The learned Judges on December 18, 1941 agreed with the lower Court's conclusion, but noticed that the appellant took the point that the sale was void in that it had been effected without the previous sanction of the District Judge of Chittoor, which it was contended was necessary because the receiver, Srinivasalu Chetty, was then in possession. The learned Judges set aside the orders of the lower Court and remanded the petition for disposal on this point. An application, dated 4th March 1941, was made to the District Judge of Chittoor, Execution Application No. 10 of 1941 in Execution Petition No. 6 of 1939 in Original Suit No. 105 of 1925, to validate the sale of the village which had taken place on 30th September 1939. The learned District Judge on 6th August 1941 passed the following order:—
“I have already passed orders on a simliar petition. Peddakannali has been sold in execution. It was in possession of a receiver of this Court in execution of a decree, and this Court permitted it to be sold. But when it was actually sold that receiver had been discharged and another receiver was in possession in execution of another decree. I will not express any opinion on the question whether sale is valid or invalid on that account. That is a question for the Sub-Court to decide.
I would only say that this Court has absolutely no objection to the sale of this village and must not be considered responsible for any tactics of its receiver. I do not consider that there has been any contempt of Court in this case at all.”
This order does not appear to have been brought to the notice of King and Happell, JJ. We read this order as implying that the learned Judge intended to say that he did not approve of the tactics of the receiver and that, had leave been asked for, he would have granted it. We understand this to mean that he gave retrospective leave, if such a thing was possible, but that in any case he would not have set aside the sale unless bound by law to do so on the ground that it was void ab initio. Whether it was void, he left to the executing Court to decide, which, in fact, it was later, as we know, again directed to do by the order of King and Happell, JJ. The executing Court has held that as the sale was without permission, it was invalid, by which we understand it to moan void, and that an invalid sale could not be validated by obtaining subsequent permission. We propose to say only this about the lower Court's judgment: The learned Judge refused to draw what he described as “nice distinctions” between the words “void” and “voidable”, which of course is the very essence of the decision, yet in the conclusion of his judgment he states that it was clear that the “decree-holder was really aware of the law that an execution sale can be cancelled by the executing Court if it had been held without the previous sanction of the Court”.
It has been argued before us that the sale of the 30th September 1939 is void because at the time of the sale Srinivasalu Chetty was the receiver in Original Suit No. 105 of 1925 and the leave of the Court in that suit had not been obtained, and it is contended that the leave could not be given retrospectively and that for these reasons the sale is void and is of no effect. For the appellant it has been argued that the sale is not void but can be set aside at the discretion of the Court and that it is obvious that the learned District Judge intended to give the necessary leave and that this Court, now that the matter is before it, should not set it aside and that in the absence of its being set aside it should be treated as a valid sale. We may state at once that there is nothing in the circumstances of this case which suggest that any injustice has been done. The receiver was the respondent's own manager and must have been perfectly well aware of everything that was going on.
The short point before us, therefore, is whether a sale of property in the possession of a receiver is void or voidable. If it is void, it must be set aside; if it is voidable, that is, can be set aside if the Court thinks fit, we will unhesitatingly refuse to do so and it will be treated as valid.
The authorities seem to us to be entirely in favour of the appellant. The law is succinctly stated in Kerr on “Receivers”, Tenth Edition, page 192. One extract is enough:
“When the Court has appointed a receiver and the receiver is in possession, his possession is the possession of the Court, and may not be disturbed without its leave. If anyone, whoever he be, disturbs the possession of the receiver, the Court holds that person guilty of a contempt of Court and liable to be imprisoned for the contempt … But unless the receiver comes with clean hands he will not be granted an injunction to restrain any interference with him, for instance, by distress…”
An instance where the Court refused to interfere is to be found in Jarvis v. Islington Borough Council and Lane. In that case, although execution was being levied, Warrington, J. refused to assist the receiver, whatever the technical aspect of the matter might be. The learned Judge points out that relief by injunction was an equitable relief. It is well to bear in mind that the jurisdiction of the Court over a receiver is not fettered by statute. Order XL, rule 1, Code of Civil Procedure, empowers a Court to appoint a receiver and to control his actions. There is nothing in the order which restricts the Court's control in any particular manner. This is naturally so. A receiver is an officer representing the Court, his possession is the Court's possession, and it follows that a very wide discretion must be in the Court as to how it should deal with its own affairs. The decisions relating to suits and proceedings against an Official Assignee, which depend upon the provision of a statute (section 17, Presidency-towns. Insolvency Act) have no relation to a receiver.
It was argued by the learned Counsel for the respondent that authority for the proposition that a sale in execution of property of which a receiver was in possession was void is to be found in the decision of the Calcutta High Court in Mrs. Levina Ashton v. Madhabmoni Dasi. It appears to have been argued before the learned Judges that, although execution against property in the custody of a receiver might amount to contempt, it did not necessarily affect the sale, a proposition which was negatived. “The general rule”, says Mookekjee, J.,
“is well settled that property in the hands of a receiver is exempt from judicial process, except of course to the extent permitted by the appointing Court”.
It is only necessary to observe that in this judgment the learned Judges throughout recognize that such a sale is liable to be set aside, which, as they point out, is the trend of the English and American cases, and nowhere in this decision is it stated that such a sale is void. Another argument in favour of that view has been founded on the use of the word “illegal” in the judgment. We consider that the word is used by the learned Judge in a general sense, certainly not as meaning “void”. Later decisions of the Calcutta High Court point out that the Calcutta view is that a sale of property in the possession of a receiver is voidable, and not void; Karimunnessa Khatun v. Fazlal Karim. In Kanailal v. Manoo Bibi Mookeejee and Beachcroft, JJ. observe:
“As pointed out in Mrs. Levina Ashton v. Madhabmoni Dasi property in the hands of a receiver is exempt from judicial process and the purchaser of such property at an execution sale buys at his peril for the sale may be cancelled upon an application to the execution Court.”
In other words, when property is in the custody of a receiver appointed by a Court, the sale under an execution issued by another Court may be avoided by appropriate procedure. It must be remembered in this case that execution was levied by the Court of the Subordinate Judge of Chittoor in a case in which a receiver had been appointed by the District Judge. In Mangtulal Bagaria… v. Daya Shanker Gobardhan Das Bhata where the Calcutta cases are discussed, Mahamad Noor and Rowland, JJ. state that a sale
“in execution of a decree of a property in the custody of a receiver without the leave of the Court which appointed him is not void but it can be set aside in a proper proceeding”.
In Thayumana Pillai v. Ramaswami Chettiar Krishnan and Odgers, JJ. approve the statement of Mookerjee, J. in Mrs. Levina Ashton v. Madhabmoni Dasi that a purchaser in court-auction, without previous leave to sell, buys at his peril, for the sale may be cancelled. In a recent decision of the Madras High Court in Subrahmania v. Thandavamurthi Leach, C.J and Byers, J. consider the Calcutta cases and the decision of the Madras High Court in Fraser and Ross v. Krishnaswami Aiyer(5). The learned Judges observe regarding the Calcutta cases:
“In the first of these cases Mrs. Levina Ashton v. Madhabmoni Dasi the Calcutta High Court held that the sale of a foreclosure decree without the leave of the Court while the estate was in the possession of a receiver was illegal and liable to be avoided. That case is no authority for the proposition that the decree of the City Civil Court passed in favour of the appellant is a nullity. Whether it could be set aside at the instance of the Official Trustee as such or the receiver is, of course, another matter.”
The decree in question created a charge on property in the hands of a receiver. It would seem therefore that, so far from there being any authority for the view that a sale of property in the hands of a receiver without leave of the Court is void, there is ample authority for the proposition that it is not void but is liable to be set aside, that is to say, is voidable. The sale therefore in the case before us was in the latter category. The question is, should it now be set aside?
We have held that, in our view, the District Judge of Chittoor with the facts before him gave retrospective leave. We are unaware of any provision of law or statute that restricts the discretion of a Court with regard to its control of the property in custodia legis. There is however, a direct authority of this High Court that, where a suit is instituted against the receiver appointed by a Court, without obtaining the previous sanction of that Court, the omission to obtain such sanction does not affect the jurisdiction of the Court in which the suit is laid but is an illegality which can be effectively cured by the plaintiff obtaining the sanction during the course of the litigation. This means, of course, that, after the suit has been filed, retrospective leave can be given; Ammukutty v. Manavikraman (Sadasiva Ayyar and Spencer, JJ.) . The learned Judges observe, approving the view of Woodroffe and Kerr, the authors of textbooks on the subject:
“… The omission to obtain previous sanction (a sanction which is not a condition imposed by statutory law like the sanction mentioned in section 92 of the Code of Civil Procedure, or section 17 of the Presidency-towns Insolvency Act, but one imposed by the common law to enforce due respect towards Courts of Justice) does not affect the jurisdiction of the Court, but is an illegality which can be effectively cured by the plaintiff obtaining the sanction during the course of the litigation.”
We see no reason to suppose that the principle laid down in this case does not apply to the case before us. The facts are: Leave to sell this property had been granted during the office of the previous receiver and the receiver was replaced after a short interval by another receiver but a second leave was not obtained. The appointing Court expressed the opinion that it had no objection whatever to the sale. Holding that was tantamount to retrospective leave, and in the absence of any law restricting the discretion of the Court in these matters, we consider that this sale must stand. The decision of the Court below was based, as we have indicated, purely on the ground that the sale was void, with which view we have intimated we are in disagreement. No grounds appear why for the ends of justice it should be set aside.
For the foregoing reasons we allow these appeals with costs.
Civil Miscellaneous Appeal No. 484 of 1942.
The history of the litigation in this matter has been set out in our judgment in Civil Miscellaneous Appeals Nos. 411 and 412 of 1942. The facts in this case are as follows. In Original Suit No. 36 of 1922, Court of the Subordinate Judge of Chittoor, the appellant sued for maintenance and there was a charge inter alia on the village of Vagavedu. The preliminary decree was dated 4th April 1934 and the final decree 27th November 1936. In Execution Petition No. 110 of 1937, on 13th July 1940, the village was sold and was purchased by the decree-holder but without notice to a receiver who had been appointed in a suit, Original Suit No. 17 of 1910, by a third party in which a decree had been passed against the defendant for maintenance and in that suit the defendant's agent was appointed (Execution Petition No. 5 of 1929) as receiver by the Subordinate Judge of Chittoor. Execution Application No. 289 of 1940 was filed by the judgment-debtor to set aside the sale. It was argued that no leave of the Court appointing the receiver had been asked or granted. That would appear to be so. It was argued, however, that, as the executing Court and the Court appointing the receiver were the same, we should hold that leave must be taken to have been granted by the Court and that the decision of this High Court in Somasundaram Chettiar v. Parimala Kandar (Beasley, C.J and Cornish, J.) was in point. But in that case the learned Judges held that the executing Court, besides being the very Court which had appointed the receiver, was fully aware of the appointment of the receiver, that it had allowed the sale to go on with knowledge of the existence of the receiver and the receiver was fully aware of the sale. These latter circumstances are not present in the appeal before us now. This receiver had been appointed in 1929 and the sale was in 1940. The personnel of the Court must have changed frequently. We do not think it can be held, as was clearly in the minds of the learned Judges who decided Somasundaram Chettiar v. Parimala Kandar to which we have just referred, that in this case the Court must have impliedly given leave with full knowledge of the facts. Had it appeared that the Court had been informed of the facts, we might have taken another view.
It has, however, also been argued that the mortgagee decree-holder need not obtain the leave of the Court. Devadoss, J. in Fraser and Boss v. Krishnaswami Aiyer dissenting from the decision of Sale, J. in Jogendra Nath Gossain v. Debendra Nath Gossain thought that the ordinary principles governing the possession of a receiver apply. He observed:
“The property being in custodia legis it would require very strong authority for holding that a mortgagee could set at naught the ordinary principle which prevents process being issued against the property in the hands of the receiver, without the leave of the Court appointing him, simply because there is a mortgage in his favour.”
We respectfully agree with Devadoss, J. Apart from the decision of Sale, J., there seems to be no authority for the proposition that a mortgagee is in a different position from that of other decree-holders. The observations of Leach, C.J and Byers, J. in Subrahmania v. Thandavamurthi to which we have referred in our connected judgment in Civil Miscellaneous Appeals Nos. 411 and 412 of 1942, are opposed to this proposition. The property is undoubtedly in custodia legis and in the absence of authority it would seem reasonable that the mortgagee should formally ask the permission of the Court which would no doubt, after being satisfied as to his good faith, grant permission. In the appeals before us now, the learned Subordinate Judge has set aside this sale on the ground that it was void. In this case, the Subordinate Judge's Court which appointed the receiver and the executing Court are the same. Whether this sale should be set aside on the merits has not been considered. We think that the proper course is to set aside the order of the lower Court and remand the case for disposal. The Court should consider whether the merits demand that this sale should be set aside and whether retrospective leave will be granted.
There will be no order with regard to costs in this appeal.
Civil Miscellaneous Appeals Nos. 493 and 494 of 1942
These appeals concern the village of Sirasanambedu. Here too, it is common ground that the sale was without the leave of the Court appointing the receiver and the judgment has entirely proceeded, as in the other appeals which we have heard, on the basis that this sale is either valid or null and void. We have pointed out in Civil Miscellaneous Appeals Nos. 411 and 412 that this view is incorrect and that prima facie the sale is valid but is liable to be set aside by reason of the absence of leave to sell from the Court appointing the receiver. The learned Judge set aside the sale solely on the ground that he considered that it was void by reason of the absence of such leave. We accordingly set aside his order and remand the case for re-hearing in the light of the observations which we have made in this judgment and in Civil Miscellaneous Appeals Nos. 411 and 412 of 1942. As the receiver was appointed by the District Judge, we think it convenient to transfer Execution Application No. 290 of 1940 and Execution Application No. 398 of 1940 in Execution Petition No. 110 of 1937 in Original Suit No. 36 of 1922 and Execution Petition No. 110 of 1937 to the file of the District Judge, Chittoor. They will be decided by him on the merits, that is to say, it having been held that this sale is liable to be set aside if the District Judge thinks fit, he will decide whether the ends of justice demand that it should be set aside for any reason.
We make no order for costs in these appeals.
N.S