# M inatoonnessa Bibee and Others v. Khatoonnessa Bibi and

- **Citation:** [1960] 2 S.C.R. 198
- **Court:** Supreme Court of India
- **Decided:** 1959-04-29
- **Case number:** Civil Appeal No. 342 of 1959
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAO, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-inatoonnessa-bibee-and-others-v-khatoonnessa-bibi-and-1855
- **Pages:** 12

## Headnote

(
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 entertainthe 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.
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...
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S.C.R.
SUPREME COURT REPORTS
199
Held, further, that the High Court was right in holding that
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
the fact that he committed repeated defaults in spite of several
opportunities given to him by the Court to pay the balance of the
decretal amrmnt. and that this court would not interfere with the
discretiol) exercised by the High Court in such circumstances.
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
I959
J ibon Kris

## Text

•
'959
Noveniber IO,
198
SUPREME COURT REPORTS [1960 (2)]
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 entertainthe 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
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
the fact that he committed repeated defaults in spite of several
opportunities given to him by the Court to pay the balance of the
decretal amrmnt. and that this court would not interfere with the
discretiol) exercised by the High Court in such circumstances.
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
I959
J ibon Krishna
Mukherjes
v.
New Bheerbhum
Coal Co. Ltd.
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)]
'959
passed by consent in favour of the New Bheerbhum
Jibon Krishna
Coal Co. Ltd., (hereinafter called respondent 1) and
Mukherjee
against the Benares Ice Factory Ltd., (hereinafter
v.
called appellant 2) on December 5, 1955. The decree
New Bhwbhum provided for the payment of the decretal amount by
Coal Co. Ltd.
six equal instalments and it directed that in case of
Gajendragadkar 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. <Jn March 31, 1958,
respondent 1 applied to the court for confirmation of
the said agreement and on May 9, 1958, G.K. Mitter, J.,
allowed the upplication. He ordered that the appellants should deposit the sum of Rs. 3,000 with 1he
attorneys of the decreeholder towards its claim under
the said decree and further directed that if the said
amount was paid within the time aforesaid and the
balance of the decretal amount was paid within ten
weeks thereafter the agreement of sale shall uot be
confirmed. The order further provided that in default
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S.C.R.
SUPREME COURT REPORTS
201
of the appellants paying ~he amounts as directed within
x959
the respective due dates the sale of the charged. proJ ibon Krishna
perty by the receiver to the second respondent as set
Mukherjee
out in the agreement shall be confirmed.
v.
Pursuant to this or<;ler the appellants deposited with New Bheerbhum
the attorneys of the decreeholder Rs. 3,000 on May 30,
Coal~~ Ltd.
1958. They had also paid to the receiver Rs. 3,500 Gajendragadkar J.
in August, 1957, towards the decretal dues. It appears
that when the appellants were unable to pay the
balance as directed by the court appellant 2 applied to
the court praying that the agreement of sale should be
cancelled and the time within which he was directed
to pay the balance of the decretal amount should be
extended. The application also sought for certain
other directions. G.K. Mitter, J., who heard this application dismissed it on July 29, 1958, and confirmed
the agreement of sale.
On August 20, 1958, appellant 2 took out a notice
of motion of-an applica~ion made by him on the same
day praying that leave may be granted to him to
deposit the whole of the balance of the decretal amount
and that the receiver should be restrained from receiving a~y money from the intending purchaser in terms
of the agreement of sale. It appears that on August 22,
1958, respondent 2 tendered a cheque for Rs. 30,000 to
the receiver towards the payment of the purchase
money under the agreement of sale. Soon thereafter,
however, respondent 2 took back the cheque and
paid Rs. 30,000 in cash on September l, 1958.
The
application made by appellant 2 for leave to pay the
0
balance of the decretal amount was dismissed by
G. K. Mitter, J., on September 4, 1958. The learned.
judge, however, stayed the delivery of possession of
the property to respondent 2 for a week from the date
of his order.
The appellants then filed an appeal against the
order of the learned judge before a Division Bench of
the High Court and obtained an order for stay of
delivery pending the decision of the appeal. On
April 29, 1959, the Division Bench dismissed the
appeal.and refused to grant certificate to the appellants to file an appeal in this Court. The appellant~
i6
202
SUPREME COURT REPORTS [1960 (2)]
'959
then applied for and obtained special leave from this
Court on May 20, 1959. That is how this appeal has
Jibon lfrishna
come before us; and the main point which Mr. Sanyal,
Jl.f ukherj ce
_
v.
for the appellants, has raised for our decision is that
New Bhmbhum the courts below were in error in refusing to give relief
Coal Co. Ltd.
to the appellants under 0. 21, r. 89 on the ground that
-
·
the said rule was inapplicable to the sale held by the
Ga)endragadkar. J. receiver.
It is common ground that the receiver was appointed with "power to him to get in and collect the
outstanding debts and claims due in respect of the
charged property and with all powers provided for in
0. 40, r. 1, cl. (d) of the Code of Civil Proceedure ".
The orcfer appointing the receiver also expressly
directed that the receiver shall be at liberty to sell the
said property charged in favour of respondent 1 either
by private treaty or by private auction to the best
purchaser· or purchasers that can be got for the sale
but he shall not hold such sale before the 13th day of
August, 1956. In other words, the receiver was
appointed in execution proceedings nnder s. 51 and
was given all the.powers under 0. 40, r. l(d) of the
Code. It is by virtue of those powers that he entered
into the agreement of sale with respondent 2 and sold
the property to him and gave him its possession.
Section 51 which deals with the powers of the court to
enforce execution provides for the execution of the
decree by five alternative modes specified in els. (a)
to (e).
One of the modes of execution is the appointn
ment of a receiver which means that a decree for the
payment of money can be executed by the appointment of a receiver.
He may either collect the income
of the property belonging to the judgment-debtor and
thereby satisfy the decree, or if so authorised he may
sell the property of the judgment-debtor and thereby
arrange for the satisfaction of the decree. Thus, in
dealing with the question as to whether the Rale held
by the receiver is a sale ordered hy the court to which
0. 21, r. 89 applies it is necessary to remember that
the appointment of the receiver itself is a mode of
execution of the decree,
f
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•,
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-
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S:C.lt.
SUPREME COURT REPORTS
203·
When the receiver so appointed is given all the
I959
powers under 0. 40, r. l(d) it is these powers which he
seeks to exercise when selling the judgment-debtor's
fibon Krishna
Mukherjee
property in execution of the decree. The sale held by
v.
the receiver under such conditions would no doubt be New Bheerbhum
governed by the provisions of 0; 40, and the court may
coal Co. Ltd.
supervise or issue directions in respect of· such a sale
. . -
..
under the provisions of the said order. Prima f acie Ga;endragadkar .I;
the sale held by the receiver appointed in execution
proceedings in pursuance of the powers conferred on
.him under 0. 40, r. l(d) would be governed by .the
powers conferred on him and the terms and conditions
on which the said powers may have been conferred and
by other relevant provisions of 0. 40. It does not
seem to attract the provisions of 0. 21.
· Courts have had occasion to consider questions
about the applicability of several _provisions ·of 0. 21
to sales held by receivers and opinions expressed on
such questions have differed more particulary in the
Calcutta High Court as we will presently indicate. Iri
the present appeal we do not propose .to consider or
decide the general question about the character of the
sale held by the receiyer nor do we propose to attempt
to specify which provisions of 0. 21 will apply to such
sales and which will not. We are dealing with the
narrow question as to whether 0. 21, r. 89 applies to
such a sale ; and it is to the decision of this narrow
question that we wi!l address ourselves in the present·
appeal.
Order 21, r. 89 enables the persons specified in sub-·
r. (1) to apply to have the sale held in execution proceedings set aside on two conditions, (a) the applicant
must deposit for payment to the purchaser a sum
equal to 5% of the purchase money, and (b) for
payment to the decreeholder the amount specified in
the proclamation of sale as that for the.recovery of
which the sale was ordered less any amount which
may since the date of such proclamation of sale have
been received by the decreeholder. The second requirement immediately raises the question -as to
whether it is necessary for ·the receiver in selling
immoveable property in execution proceedings to issu~
204
SUPREME COURT REPORTS [1960 (2)
z959
a proclamation as required by 0. 21, r. 66 of the Code.
In our opinion there can be no doubt that the proviJibon Krishna
f h
"d
1 d
1
1 h
Mukherjee
sions o t e sa1
rue
o not app y to sa es eld by
v.
receivers. No decision has been cited before us where
New Bheerbhum a contrary view has been expressed. ·The provisions
Coal Co. Ltd.
of the said rule apply where property is ordered to be
. -
sold by public auction in execution by the court, and
Ga1endragadkar J. the order for the sale of such property must be made
by any court other than the Court of Small Causes as
provided by r. 82. Where the court appoints a receiver
and gives him liberty to sell the property the receiver
may either sell the property and thereby realise the
money for the satisfaction of the decree, or he may,
even without selling the property, seek to satisfy the
decree by the collection of rents due from the property
or other ways open to him under the "law. In such a
case it is difficult to hold that by the very appointment
of the receiver clothing him with the power to sell the
property if he thought it necessary to do so the court
had ordered the sale of the said property within the
meaning of 0. 21, r. 82. If the provisions of r. 66 of
O. 21 'are inapplicable to sales held by receivers it is
obvious that the second condition prescribed by
r. 89(l)(b) is equally inapplicable and it is undoubtedly
one of the two essential conditions for the successful
prosecution of an application under the said rule. In
our opinion this fact clearly emphasises the inapplicability of the whple rule to sales held by receivers.
We are, therefore, satisfied that the High Court was
right is refusing to entertain the appellants' application under 0. 21, r. 89.
It is then argued that the High Court should have
considered the appellants' prayer under s. 151 of the
Code. It is uo doubt a hard case where the appellants
have to lose their property though presumbly at the
time when they made the present application in the
High Court they were able to produce for the payment to the decreeholder the whole of the balance of
the decretal amount. As the judgment of the Division Bench shows the learned judges themselves have
observed that it was difficult not to feel sympathy
for the appellants; but, on the other hand, it is clear
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S.C.R.
SUPREME COURT REPORTS ·
205
from the record that the appellants were given enough
z959
opportunity to pay the decretal. amount. The decree
b
d
1 d d
d £ 1
I
jibon Krishna
was passed y consent an inc u e
a
e au t c ause.
Mukherjee
The appellants committed default, and incurred the
v.
liability to pay the whole of the decretal amount. New Bheerbhum
When the agreement of sale executed by the receiver
Coal co. Ltd. ·
came before the court another opportunity was given
to the appellants to pay the decretal amount on the Gajendragadkar J.
specified conditions. The appellants again comm~tted
a default. It is only later when it was too late that
they rushed to the court with a pray~r that they
should be allowed to pay the decretal amount themselves and their property should be saved. Under
such circumstances, if the learned judge who heard
their application as well as the appellate court came
to the conclusion that the' court's jurisdiction under
s. 151 cannot be invoked by the appellants, we do not
see how we can interfere with the said decision. It
is true that s. 151 is not specifically mentioned in the
judgment of either of the courts below, but that must
be obviously because no specific plea under s. 151 was
raised. Even so the Division Bench has observed that
it could not interfere with the order of the learned
judge when in his discretion he refused to make an
order as asked for by the appellants. 'l'his must
inevitably refer to the discretion under s. 151,. because
if 0. 21, r. 89 had applied and the appellants had
satisfied the conditions prescribed by it there would be
no discretion in the court to refuse such an application.
It would then have been a right of the appellants to
claim that the sale should be set aside. We are,
therefore, unable to accede to the plea raised before us
by Mr. Sanyal under s. 151 of the Code.
There is another point which Mr. Sanyal attempted
to raise. He contended that the sale had not been
properly confirmed before he moved the court for
leave to pay the decretal amount, and so the courts
below were in error in not allowing his application. This
argument is based on a decision of the Calcutta High
Court in S. M. Sudevi Devi v. Sovaram Agarwallah(')~
In that case Woodroffe, J., was dealing with a
(r) (1906) Io C.W.N. 306.
"'
206
· SUPREME COURT REPORTS [1960 (2)]
r959
conditional decree which entitled the decreeholder, on
the default of the defendent, to apply to the court which
Jibon J{rishna
d h d
d
h
·
f h d c
d
Mukherjee
passe t e ecree to irect t e eJectment o t e eien -
v.
ant. It appears th11t when disputes arose between the
New Bheerbhwn decreeholder and the judgment-debtor in regard to the
i;oal Co. Ltd.
performance of the conditions imposed by the decree
.
dk
the decreeholder obtained an order for ejectment of
G•1•ndraga ar J. the defendant without notice to the judgment.debtor.
The judgment.debtor then applied for setting aside,
modifying or reviewing the said order.
Woodroffe, J.,
held that a court had inherent power to deal with an
application to set aside an order made ex parte on a
proper case being substantiated. Mr. Sanyal contends
that the sale ill the present case being conditional in
the sense that it was subject to the confirmation by
the court it was open to the court to refuse to confirm
it when the appellants applied for leave to pay the
balance of the decretal amount. This argument necessarily assumes that the order passed by Mitter, J., on
May 9, 1958, was a conditional order. In our opinion
this assumption is not well-founded. The said order no
doubt gave an opportunity to the appellants to pay tho
decretal amount in the manner prescribed by it but it
clearly provided that in default of the appellants
complying with the said conditions within the respective due dates th~ sale of the property by the receiver
to respondent 2 be confirmed and that the said receiver
do make over possession of the said property to the
said purchaser. It is clear that this order is not a conditional order at all.
It is a composite order.
It
provided for the payment of the decretal amount by
the appellants and in that sense gave an opportunity
to the appellants to avoid the sale of their property;
but, on the other hand, it also provided that on their
default to comply with the order the sale do stand
confirmed and the receiver do make over the possession
of the property to the purchaser.
Therefore, in our
opinion, there is no scope for applying the principle
laid down by Woodroffe, J., in the case of
S. M.
Sudevi Devi (1 ).
(1) (1906) 10 c.w.N. 306.
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S.C.R.
SUPREME COURT REPORTS
207
Before we part with this appeal we may very briefly
z959
indicate the nature of the divergence of views expressJibon Krishna
ed in the Calcutta High Court on the question about
Mukherjee
the character of sales held by receivers appointed by
v.
courts to which our attention has been invited.
New Bheerbhum
In Minatoonnessa Bibee & Ors. v. Khatoonnessa Bibee
Coal Co. "Ltil .•
& Ors. (1), Mr. Justice Sale, held that the purchaser G . d-dk 1
at a receiver's sale is entitled to obtain the assistance a;en raga ar ··•
of the court in obtaining the possession under the provisions of the Code relating to sales in suits. In coming
to this conclusion the learned judge referre~ to a precedent in the Calcutta "High Court in. that. behalf, and
made an order for possession of the property in favour
of the receiver .. It may be pointed out that the learned
judge, in dealing with the question, has referred to the
important fact that in that particular case the sale had'
been already treated as a sale by the court inasmuch,
as the registrar had been directed under ~he provisions
of the Code to execute the conveyance on behalf of some
of the parties to the suit. Thus the question was in a
sense res judicata.
;However, in· dealing with the
general question the learned judge has no doubt observed that sales by receivers " are in all essential particulars similar. to sales by the registrar, and that if
they are sales by a civil court in a suit the procedure
prescribed by the Code for sales in a suit would be
applicable."
We do not thinkthat these observations
should be divorced from the facts of the particular
case with which the learned judge was dealing, and
read as laying down a general proposition that sales
held by receivers attract the ~pplication of all the
provisions in the Code in :regard to sales held by the
court. If such a. proposition was really intended to be
laid down we would hold that it is not correct at least
in regard to the provisions of 0. 21, r. 89.
In Galam Hossein Oassim Arifj" v. Fatima Begum (2) •
Mr. Justice Fletcher, has taken a contrary view. He
has ·held that "a sale by a receiver under the direction
of court is not a sale by court and in such a sale the
court does not grant a sale certificate nor does it confirm: the ·sale."
The learned judge referred to the
(r) (1894) I.L.R. 21 Cal. 479.
(2) (1910) 16 C.W.N. ~9f·
208
SUPREME COURT REPORTS [1960 (2)]
x959
earlier decision of Sale, J., and dissented from him.
It is unncessary for us to consider the correctness or
Jibon Krishna
otherwise of this decision.
Mukherjee
v.
Fletcher, J., adhered to the same view in Jogemaya
New Bhmbhum Dasee v. Akhoy Ooomar Das (1 ).
In that case the
Coal co. Ltd.
learned judge was dealing with the sale of properties
Gajendragadkar ]. by the Commissioner of Partition, and he held that
such a sale is not one by the court but is one made by
the Commissioner of Partition under the authority of
the court.
Chaudhuri, J., considered the same question in Basir
Ali v. Hafiz Nazir Ali (2 ) and held that in all sales
whether by the court or under the court or by direction of the court out of court the purchaser is bound to
satisfy himself of the value, quality and title of the
thing sold just as much as if he were purchasing the
same under a private contract.
According to this
decision the sales certificate does not transfer the title.
It is evidence of the transfer. Accordingly, he directed
the receiver to execute a conveyance in favour of the
purchaser. This decision is not. quite consistent with
the view taken by Mr. Justice Fletcher.
In Rani Bala Bose v. Hirendra Chandra Ghose (3)
Chakravarti, J., as he then was, has incidentally
referred to this conflict of judicial opinion in the Calcutta
High Court, and has in di ca ted his preference for the
view taken by Sale, J., though he has been careful
enough to add that he was not deciding the point and
that the case with which he was concerned was not
covered by the actual decision of Fletcher, J.
These decisions show that there has been a divergence of opinion as to the character of the sale held
by a receiver as to whether it is a sale by the court,
or under the court, or under the directions of the
court. It is because our attention has been invited to
these decisions that we have thought it necessary to
make it clear that our present decision is confined to
the narrow question as to whether the sale held by a
receiver attracts the provisions of 0. 21, r. 89.
We
(1) (1912) I.L.R. 40 Gal. 140.
(2) (1916) I.L.R. 4}Cal. 124.
(>} (1948) 52 C.W.N. 139.
f
•
•
•
•
8.C.R.
SUPREME COURT REPORTS
209
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.
..A_p_peal dis111issed.
1959
J ibon ]( ris.hna
Mukherjea
v.
New Blieerbhum
Coal Co. Lid •
Gajendragadkar J .
•
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-CompetencyForeign immoveable properties ·excluded by preliminary decreeJV hether reference and award include such properties-Constructionlndian 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 imlnoveable properties situated in Burma and in the Indian State of
Pudukottai. The trial court passed a preliminary decree excluding 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
27
1959,
November IJ . .