HARNANDRAI BADRIDAS Vs. DEBIDUTT BHAGWATI PRASAD
LAWS(CAL)-1960-7-41
HIGH COURT OF CALCUTTA
Decided on July 18,1960

HARNANDRAI BADRIDAS Appellant
VERSUS
DEBIDUTT BHAGWATI PRASAD Respondents

JUDGEMENT

- (1.) This appeal arises out of an order of Mr. Justice Ray dismissing the Appellant's application for setting aside the sale of premises Nos. 99 and 128/129. Cotton Street, Calcutta, held by a Receiver appointed in suit No. 748 of 1956. On June 7, 1956 the Respondent obtained a summary judgment against the Appellant and for the realisation of its dues under the summary judgment the Respondent levied attachment of premises Nos. 99 and 128/129, Cotton Street. On July 30, 1957 the Respondent applied for adjudication of Durga Prosad Goenka, one of the partners of the Appellant firm. In January 1958, Mr. Justice G.K. Mitter appointed Mr. Tibrewal a Receiver to sell premises No. 09 and 128/129, Cotton Street. On April 3, 1958 Mr. Justice Bachawat passed an order by consent appointing Mr. Tibrewal a Receiver of the identical premises in execution of the decree in suit No. 748 of 1956. In the minutes of this order no authority was given to the Receiver to sell the premises. On April 26, 1958 the Receiver sold premises No. 99, Cotton Street, for a sum of Rs. 32,000 and premises No. 128, Cotton Street, for a sum of Rs. 52,000. It will appear that the two premises were sold by the Receiver Mr. Tibrewal in the insolvency jurisdiction as well as in execution of the decree obtained by the Respondent in money suit No. 748 of 1956. On or about May 5, 1958 the Appellant made an application to set aside the sale held in the insolvency jurisdiction. This application was allowed by Mr. Justice Ray on August 5, 1959. By this order Mr. Justice Ray set aside the appointment of Mr. Tibrewal as the Receiver in insolvency jurisdiction and also set aside the sale held by him in that jurisdiction of premises No. 99 and 128/129 Cotton Street; but, that order was made "without prejudice to the sale held in execution proceedings in suit No. 748 of 1956 of this Court" and the Receiver was directed to hold the sale proceeds of the said premises subject to any direction that might be given by the executing court. I have already said that the minutes of the order passed by Mr. Justice Bachawat on April 3, 1958 did not invest the Receiver Mr. Tibrewal with authority to sell the premises although in the petition for appointment of Mr. Tibrewal as Receiver there was a prayer to that effect and although the attorney for the Appellant put his signature to that petition in token of his consent to that prayer. The mistake was. however, not detected till the 7th May, 1959 when on the Respondent's petition to speak to the minutes Mr. Justice Bachawat corrected the minutes of the order, dated April 3, 1958, in the following terms: I am satisfied that in the minutes of the order dictated by me on April 3, 1958, there are clerical mistakes arising therein from accidental slips and omissions. I direct that the minutes of the order, dated April 3, 1958 be corrected as follows: The word "of" between the word "Receiver" and the word "Premises" in the second line of the order dictated by me on April 3, 1958 be deleted and in place thereof the words "for selling" be substituted.... Let the order, dated April 3, 1958, be drawn up accordingly and wide expedition. The order, dated April 3, 1958, as drawn up, which has been printed in the paper book shows that MT. Tibrewal was appointed Receiver of the two premises for the purpose of selling the same. On August 14, 1959 the Appellant filed the present application for declaring the sale as void and also for setting aside the sale. Before Mr. Justice Ray the Appellant challenged the validity of the sale on the ground that on the date of the sale, that is to say, on April 26, 1958 the Receiver was not armed with authority to hold the sale and consequently claimed that the sale, was void. This point of the Appellant was repelled by Mr. Justice Ray on the ground that although the minutes of the order, dated April 3, 1958, were corrected by his Lordship Mr. Justice (Bachawat on May 7, 1959. the corrected minutes took effect from the date of the original minutes. The prayer for setting aside the sale was rejected by Mr. Justice Ray on the ground that it was barred by limitation. Against that order this appeal has been brought by the judgment-debtor.
(2.) Mr. Meyer appearing in support of the appeal has raised five points before us: (1) The sale in insolvency jurisdiction having been declared to be a nullity the sale by the Receiver in the execution proceeding must also be declared to be void. (2) The powers exercised by the Receiver in the insolvency jurisdiction are inextricably interwoven with the powers exercised by him in the execution proceeding and the former having been declared to be void the latter cannot be treated as valid. (3) The sale by the Receiver in the execution proceeding is void because on the date of the sale the Receiver had no authority to sell the premises. (4) Assuming that the Receiver was authorised by the Court to sell the premises on April 218, 1958, he could not exercise that power until the order of Mr. Justice Bachawat, dated April 3, 1958, was drawn up or in any event until a signed copy of the minutes of the order was handed over to the Receiver. (5) In any view of the matter Mr. Justice Ray was wrong in holding that the application for setting aside the sale was barred by limitation under Article 166 of the Indian Limitation Act, because the Appellant did not acquire the right to set aside the sale until. His Lordship Mr. Justice Bachawat corrected the minutes by his order dated May 7, 1959.
(3.) The first point is entirely without substance. The declaration of nullity of the sale held in insolvency jurisdiction does not and cannot entail the consequence that the sale in the execution proceeding, must also be declared to be a nullity. I have already said that the sale in insolvency jurisdiction was only of the share of Durga Prosad Goenka, who is one of the, partners of the Appellant firm, whereas the sale in the execution proceeding is of the right, title and interest of the firm itself. Consequently, the declaration of nullity of the sale held in insolvency jurisdiction cannot affect the validity of the sale held in execution proceeding. [Moreover, in setting aside the sale in insolvency jurisdiction Mr. Justice Ray expressly stated that that order was made without prejudice to the sale in the execution proceeding and the Receiver was directed to hold the sale proceeds subject to any order that might be passed by the executing court. The first point raised by the Appellant must accordingly be overruled.;


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