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HIGH COURT OF ORISSA
Narasimham And Mohapatra, JJ.
BHAGBAN SAHU - Appellant
Versus
DASARATHI SAHU - Respondent
Civil Revn. 133 Of 1952
Decided On : JANUARY 12, 1954
CIVIL PROCEDURE CODE - ORDER 21, RULE 83 - SALE BY RECEIVER - SUMMARY PROCEDURE FOR REALISATION OF UNPAID PURCHASE MONEY - JURISDICTION OF COURT - SUBMISSION TO JURISDICTION - CHARGE ON PROPERTY SOLD - ENFORCEMENT BY SUMMARY PROCEDURE - LIS PENDENS - TRANSFER PENDENTE LITE.
Fact of the Case:
In a partition suit, the Court appointed receivers to manage the properties of the Sahu family. The receivers negotiated the sale of two mills to the National Agencies for a consideration of Rs. 6,00,000/-. The Court approved the sale and the sale deeds were executed and registered. The purchasers took possession of the mills but failed to deposit the balance consideration of Rs. 3,75,000/-. The receivers filed a petition for realization of the balance consideration by summary procedure.
Finding of the Court:
The Court held that the sales in question were sales by the Court and not private sales. The purchasers had submitted to the jurisdiction of the Court by their consistent conduct throughout the proceedings and were bound by the order directing them to deposit the balance consideration in Court. The Court had jurisdiction to enforce its own order by way of a summary procedure. The charge created on the properties sold for the balance of the unpaid consideration money was not a charge under Section 100 of the Transfer of Property Act and, therefore, the provisions of Order 34, Rule 15, Civil Procedure Code, were not applicable. The transferee of the properties, being a pendente lite transferee, was bound by the order passed by the Court and the Court was entitled to enforce its order against the transferee also.
Issues: 1. Whether the sales in question were sales by the Court or private sales? 2. Whether the purchasers had submitted to the jurisdiction of the Court? 3. Whether the Court had jurisdiction to enforce its own order by way of a summary procedure? 4. Whether the charge created on the properties sold for the balance of the unpaid consideration money was a charge under Section 100 of the Transfer of Property Act? 5. Whether the transferee of the properties was bound by the order passed by the Court?
Ratio Decidendi: 1. The sales in question were sales by the Court and not private sales because the negotiations were carried on by the parties to the suit, but the transactions were completed with the permission and approval of the Court at each stage. The Court had to be consulted from time to time and the receiver had to be consulted as the properties were custodia legis. 2. The purchasers had submitted to the jurisdiction of the Court by their consistent conduct throughout the proceedings. They had appeared in the suit through their advocate, filed petitions, and obtained adjournments from time to time to make the deposits. They had also made themselves bound by the order dated 6-11-1947 directing them to deposit the balance consideration in Court. 3. The Court had jurisdiction to enforce its own order by way of a summary procedure because the purchasers had submitted to the jurisdiction of the Court and made themselves bound by the order. The Court was not required to direct the receivers to file a separate suit for realization of the balance consideration. 4. The charge created on the properties sold for the balance of the unpaid consideration money was not a charge under Section 100 of the Transfer of Property Act because it was not created either by act of parties or by operation of law. The Court is not a juridical person who can sue or be sued against. 5. The transferee of the properties, being a pendente lite transferee, was bound by the order passed by the Court and the Court was entitled to enforce its order against the transferee also.
Final Decision: The Court dismissed the Civil Revisions with costs.
MOHAPATRA, J.
( 1 ) THESE Civil Revisions are against the order dated 5-5-1952 of Sri P. C. De, subordinate Judge of Berhampur, in O. S. No. 23 of 1943, directing the receivers to realise, by summary procedure, the unpaid balance consideration of Rs. 3,75,000/- in respect of sale-deeds dated 14-11-1947 in favour of the petitioners (National Agencies at Cuttack and Berhampur) for a consideration of Rs. 6,00,000/ -. The subject matters of the aforesaid conveyances dated 14-11-1947 are Aska Sugar Works and Distillery at Aska and Paramananda Saw Mills at russelkonda.
( 2 ) THE parties to the Partition Suit No. 23/ 1943 are the members of the berhampur Sahu family well known in the locality as an aristrocratic and rich family. It is to be mentioned that the family are involved in heavy debts and there are quite a number of creditors including judgment-creditors. On the basis of a petition for appointment of receiver in respect of the properties involved in the partition suit, by the order of the High Court dated 21-12-1944, the two defendants (defendant No. 1 Damodar Sahu and defendant No. 19 Dasarathi sahu) were appointed as receivers. Defendant No. 1 was placed in charge of the management of the aforesaid two important items of properties, that is, the Sugar Distillery at Aska and paramananda Saw Mills at Russelkonda. The receivers, during the course of their management of the properties of the Sahu family, were earnestly attempting to discover ways and means for discharging the outstanding debts of the members of the family and the debts binding on the family, as a whole. Defendant No. 1 was carrying on negotiations for selling of the aforesaid two mills in his charge and the negotiations advanced a good deal with the present petitioners, National Agencies of Cuttack, the consideration money having been fixed for a sum of Rs. 6,00,000/, that is to say, Rs. 4,00,000/- for the Aska Sugar Distillery and Rs. 2,00,000/-for the Saw Mills at Russelkonda. As a result of these negotiations, on 17-5-1947, 3 draft agreements were filed for approval of the Court in the partition suit between the National Agencies on the one side and the plaintiff and defendants 19 to 22 in respect of one agreement, and defendants 12 to 14 in respect of another and other defendants in respect of the third on the other. On that very day, the Court accorded permission for sale on the terms embodied in the aforesaid draft agreements and approved the terms. The fair copies of agreements were filed on 7-8-1947, and the agreements were approved. The Court, however, ordered :
"it appears that a sum of Rs. 1,00,000/- has already been deposited by the purchasers but no intimation from the treasury has been received. Call on 23/8. "
The purchasers (the National Agencies, Cuttack) had taken time to make deposit in accordance with the terms of the agreements and by 1-10-1947, a sum of Rs. 2,00,000/- had been deposited in Court. It is to be noted here that another sum of rs. 25,000/- had been paid in cash to some of the parties, that is, Iswarachandra sahu and Dasarathi Sahu, personally which brings the total amount paid by the purchasers (National Agencies) to Rs. 2,25,000/-leaving a balance of Rs. 3,75,000/ -. Six draft sale-deeds were approved by the Court on 6-11-1947, and 6 sale-deeds were executed and registered on 14-11-1947. Two sale-deeds were executed by defendant No. 1 in respect of twelve annas share, in his capacity as a receiver, of the two aforesaid mills -- one sale-deed in respect of each; two other sale-deeds were executed by Dasarathi Sahu (defendant No. 19) in respect of two annas interest in the said two mills; --one Kabala in respect of the aforesaid mills; and similarly two other Kabalas were executed in respect of the balance two annas interest in the said mills. On the petition filed by the plaintiff, the Court ordered the receiver, to deliver possession on 17-11-1947. The receiver, in accordance with the order passed by the Court, actually deli
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