Decided on August 18,1950



Panchapakesa Ayyar - (1.) ONLY two points arise for determination in these two civil miscellaneous second appeals. The first is whether both the lower Courts went wrong in overruling the appellants' plea of limitation and allowing the receiver of Court to be brought on record, after 12 years had elapsed since the passing of the decree, to represent the judgment-debtors already on record even though the receiver was functioning for the judgment-debtors at the very time when the execution petition was filed. The second point which is only raised before me and in the lower appellate Court, and was not taken before the trial Court is that there has been a partition in the family after the decree in execution now was got against the manager of the joint family, and that the decree-holder, therefore, could not proceed against the shares of the junior members without establishing their liability and the exact quantum of their liability in a fresh suit. This second point cannot be gone into as it is a point not taken in the trial Court and was raised for the first time only in the lower appellate Court and involves a question of mixed law and fact, and it is admitted that the decree against the manager now in execution was a decree binding on all the members of the joint family before partition and this decree-holder had not been privy to the partition or agreed to restrict the liability of each member regarding this decree to a certain figure. So only the first point really arises for consideration before me in these civil miscellaneous second appeals.
(2.) MR. V. Parthasarathi for the appellants urged vehemently that under Section 48, Civil P. C., it will be unthinkable to allow any execution petition to be amended by adding a receiver, instead of the judgment-debtors, in order to get at the properties without avail, and said that such an amendment will be like adding a new party, or seeking a new mode of relief, or attaching new properties, and should be disallowed seeing that the amendment was prayed for after the expiry of 12 years from the date of the decree. There is absolutely no doubt that no person can be allowed to amend an execution petition after the expiry of 12 years under Section 48, in the Courts to which Section 48 applies, by seeking to proceed against persons other than those against whom it was originally sought to execute the decree, or to seek to execute the decree in a manner different from the way in vrhich it was sought to be executed, as by ap- plying for attachment and sale of immovable properties whereas the original prayer was forl attachment of movables or arrest of the judgment- debtor. This is well settled. If authority is necessary for this obvious position, the rulings in Ram Ranbijaya v. Kesho Pra-sad, A. I. R. (28) 1941 Pat. 635 : (191 I. C. 492) and Bhanpal Singh v. Siyaram, A. I. R. (29) 1942 ALL. 442: (203 I. C. 590), will show this; nor does MR. Narasaraju, appearing for the other side, dispute this. The question, here, however, is whether the addition of a receiver, who is in charge of the properties of the judgment-debtors (already on record) sought to be proceeded against will amount to the addition of a new party. It is admitted that only the same old properties are sought to be proceeded against, and that the execution petition was filed before limitation operated though the re-ceiver was sought to be brought on record, in lieu of the judgment-debtors, after 12 years had elapsed since the decree. A receiver appointed by Court does not become the owner of the pro-perties, and will only be holding the properties for the benefit of the true owners, like the guardian of a minor, the manager of a lunatic, the trustee of a temple, etc. This has been well recognised in Mangtulal v. Daya Shanker, A. I. R. (23) 1936 Pat. 572 : (165 I. C. 749). In Ghasiram Marwari v. Rajashiba Prasad Singh, 16 Pat. 316 : (A. i. R. (24) 1937 Pat. 321), a Bench of the Patna High Court has held that an execution petition is not necesarily barred merely because one of the judgment- debtors is not described as a minor in the execution petition and a guardian ad litem is not appointed till after the period of limitation under Section 48; it has held that the subsequent appointment of a guardian ad litem does not amount to the addition of a new party to the suit or proceeding which must be deemed to have been instituted against the minor on the date on which it was filed. The principles in the last two cases must apply here also. I am unable to agree with MR. Parthasarathi that the ruling in Ghasiram v. Siba Prasad Singh, 16 Pat. 316 : (A. I. R. (24) 1937 Pat. 321), turned upon the fact that there were other judgment-debtors in that case who could be said to have effectively represented the minor judgment-debtor. MR. Parthasarathi urged that the case might be different if a receiver was appointed in the course of the execution petition to take charge of the properties of the judgment-debtors sought to be proceeded against, but that, here, the receiver was in charge of the properties even when the execution petition was filed, and the decree-holder ought not to have been allowed to amend the execution petition by bringing the receiver on record in lieu of the judgment-debtors when he could and should have done it before 12 years had elapsed. He said that the addition of the receiver in this case would, therefore, be a fundamental alteration of the scope of the execution petition, and not merely an incidental rectification of a formal defect. He urged that whenever a decree-holder, for whatever reason, be it from ignorance or carelessness, files an execution petition which contains allegation against the facts obtaining then, he cannot be allowed to amend the execution petition after 12 years have elapsed since the decree. I cannot agree with this extreme argument. Suppose, for instance, a decree-holder did not know the judgment-debtor to have become a lunatic at the time he filed the execution petition, and discovers it a few days later and wants to add the manager of the lunatic's estate after the 12 years period was elapsed, he having filed the execution petition on the last day of limitation. Is he to be precluded from the remedy he seeks? I am of opinion that he should not be. So too suppose a decree-holder has asked for attachment of some cattle which he has seen housed in village A by the judgment-debtor, but by the time he files the execution petition on the last day of limitation, the cattle have been, unknown to him, removed to village B, 3 or 4 miles away, can it be said that the very same cattle cannot be attached and sold after giving him the indulgence of amending the name of the village so that the officers of Court may go to the place where the cattle really are and attach them? Again, suppose a decree- holder, believing that a sum of RS. 50,000 belonging to the judgment-debtor is in the Reserve Bank, Madras, files an execution petition for attaching that money to satisfy his decree for a lakh of rupees, but, unknown to him, the money has been transferred to another branch of the bank, or another bank, before he files the execution petition on the last day of limitation, can it be said that he should not be given the indulgence of amending the execution petition by stating the exact place where the money is to be found for attachment or for serving a garnishee notice ? I do not think so. These are all things which merely affect the description of the properties or parties, and rectify the incidental defeats. They do not effect fundamental alterations. A receiver is only the representative of the judgment-debtor. He does not become the owner, but, in order effectively to get at the properties without any danger of the right to do so being challenged, the receiver also is made a party. The fact that the receiver was operat-ing even when the execution petition was filed, and that the decree-holder could have found this out with diligence will only be a circumstance for saddling him with costs when allowing the amendment, and will not be a circumstance converting the amendment asked for into a fundamental one, or justifying the refusal of such amendment. Of course, if any new property with the receiver, though belong-ing to the judgment-debtor, is sought to be included, by the amendment prayed for after 12 years, that amendment will be refused, to that extent. Here we are concerned with no such position. In the result, therefore, I hold that the orders of both the lower Courts directing the receiver to be brought on record and the execution petitions to proceed were correct and proper. These civil miscellaneous second appeals deserve to be and are hereby dismissed with costs. (Leave refused).;

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