- (1.) THESE are three appeals which arise out of connected facts and we propose to dispose of them by a single judgment. Appeals Nos. 25 and 28 are by Ramniwas and others who are decree-holders and appeal No. 79 of 1961 is by Thakur Devi Singh son of Vijai Singh, judgment-debtor.
(2.) THE material facts are these. Ramniwas and others obtained a preliminary decree for Rs. 97719/- in a suit for sale against Vijai Singh judgment-debtor from the court of the Senior Civil Judge, Ajmer, on the 11th August, 1951. This was made final on the 3rd May, 1952. THE property under mortgage then came to be sold for a sum of Rs. 21349/14/- leaving the balance still to be realised personally against him. Vijai Singh died on the 24th August, 1956. Before his death, however, his creditors filed an insolvency petition against him on the 4th April, 1956, during the course of which an interim Receiver was appointed by the insolvency court by an order dated the 4th June, 1956. By this order, the learned insolvency Judge directed the receiver to "take steps to recover compensation payable to the debtor". Before proceeding further it may be mentioned that the judgment-debtor Vijai Singh was an 'istimrardar' in the former State of Ajmer and his estate was resumed as a result of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Act No. III of 1955) and he became entitled to receive certain compensation in lieu of his estate. It appears that Devisingh respondent objected to the order by which an interim receiver was appointed for taking steps to recover the compensation money from the Jagir Commissioner; bur this objection was rejected and the order was made absolute on the 17th May, 1958. Meanwhile on the 16-4-1958, the appellants decree-holders made the execution petition, out of which Appeal No. 25 of 1960 arises, seeking attachment of the judgment debtor's compensation money in the hands of the Jagir Commissioner. An order of attachment was issued by the executing court on the 14th May, 1958. The Jagir Commissioner, however, informed the court that it was not possible to comply with the order of the court as a Receiver had already been appointed by the insolvency court and the said Receiver had asked for payment to be made to him of the compensation money payable to the Istimrardar. Thereupon on the 27th August, 1958, the decree-holders made an application to the court that although it was correct that an interim Receiver had been appointed by the insolvency court yet the compensation money payable to the judgement-debtor had not been paid to him, and so the Jagir Commissioner could not refuse to send the amount to the executing court in execution of their decree. This application was opposed on behalf of the Receiver who seems to have been under the impression (though a mistaken one) that the judgment-debtor Vijai Singh had been adjudged an insolvent, and that his estate vested in him, and, therefore, he alone was entitled to receive the compensation money payable to him (Vijaisingh ). It is not disputed before us that Vijai Singh was never adjudged an insolvent and that he had died and the application for insolvency is still pending in the court of the insolvency Judge against his son and heir Devisingh. It is in these circumstances that the learned Senior Civil Judge, Ajmer by his order dated the 15th February, 1960, which is under appeal before us held that the decree-holders "cannot get the compensation attached, or, in other words, proceed in execution against the jagir compensation money payable to the judgment-debtor and in the hands of the Jagir Commissioner. These are the facts relative to appeal No. 25 of 1960. As for the next appeal namely No. 28 of 1961, which arises out of a subsequent petition filed by the decree-holders on the 13th July, 1960, execution was sought therein against certain property which was alleged to have been received by the respondent-judgment-debtor from his deceased father Vijaisingh. This application was opposed on the ground that the judgment-debtor was completely protected by S. 29 of the Ajmer Land and Revenue Regulation, 1877, (No. II of 1877 ). The executing court has upheld this objection and dismissed the execution application. It is unnecessary to state the facts out of which the third appeal No. 76 of 1961 by the judgement-debtor Devisingh arises because it has been candidly stated before us by his learned counsel that if the decision in the second appeal goes against him, he does not propose to press it. We shall now deal with these appeals in their serial order. The only question which arises out of appeal No. 25 of 1960 is whether an interim receiver having been appointed by the insolvency court for taking steps to recover the compensation money payable to the judgment-debtor, the decree-holders were precluded from proceeding in execution against that property and the executing court was powerless to attach the same. The answer to this question, in our opinion, is clearly furnished by S. 20 of the Provincial Insolvency Act, 1920 (Act No. V of 1920 ). This section reads as follows: - "the court when making an order admitting the petition may, and where the debtor is the petitioner ordinarily shall, appoint an interim receiver of the property of the debtor, or of any part thereof, and may direct him to take immediate possession thereof or of any part thereof, and the interim receiver shall thereupon, have such of the powers conferable on a receiver appoint ed under the Code of Civil Procedure, 1908, as the court may direct. If an interim receiver is not so appointed, the court may make such appointment at any subsequent time be fore adjudication, and the provisions of this sub-section shall apply accordingly. " In order to appreciate the true content and import of this provision, we may as well reproduce here the material portion of sec. 28 which has a bearing on the question before us and which section comes into play after an order of adjudication has been made. Sub-sec. (2) of this section is in these terms: "on the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided. . . . . . . . . . . . " Sub-sec. (4) then provides that - "all property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the Court or receiver, and the provisions of sub-sec. (2) shall apply in respect thereof. " Sec. 56 then deals with the appointment of a receiver and provides that once the court has appointed a receiver for the property of the insolvent at the time of the order of adjudication or at any time afterwards, such property shall vest in him. It further provides that where the court has so appointed a receiver, it may remove the person in whose possession or custody the property of the insolvent may be, provided that nothing shall authorise the court to remove from the possession or custody of property any person whom the insolvent has not a present right so to remove. Viewed in this perspective, we are definitely of the opinion that an interim receiver appointed by the court under sec. 20 of the Act does not stand on the same footing as a receiver appointed at the time, or, after the order, of adjudication under sec. 28. Furthermore, such an interim receiver can have only such powers as the court may confer upon him and which are conferable on a receiver appointed under O. 40, r. 1 of the Code of Civil Procedure. In other words, the property of the insolvent does not vest in such a receiver. Thus it was held in Subramania Aiyar vs. Official Receiver (l) that an interim receiver does not possess the powers of the Official Receiver and has under sec. 20 only the powers of a receiver appointed under the Code of Civil Procedure and is not clothed even with these powers till he takes possession of the debtor's properties. Again in Jokhiram Surajmal vs. Chothmal Bhagirath (2), it was held that an ad interim receiver appointed under sec. 20 does not have all the powers of the full fledged receiver but it is necessary for the court to make an order under that section whereby the court in its discretion may invest him with certain powers con-feiable on him within the meaning of O. 40, r. 1 C. P. C. It was held that there was a very considerable difference between sec. 20 and sec. 56 and that the latter section contained the provision by which jurisdiction was given for the appointment of a receiver after adjudication and whereunder it was provided that on the appointment of such receiver, the insolvent's property shall vest in him. Again it has been held in Rama Raju vs. Official Receiver (3) that whatever may be the powers conferred on an interim receiver, the property of the debtor does not vest in him as it does in a receiver appointed after adjudication under sec. 56 of the Act and, therefore, his appointment has not the same effect as the appointment of an Official Receiver after the order of adjudication. With respect, we agree with this view.
(3.) IT must follow from what we have discussed above that it is only after his adjudication that an insolvent can be said to have been divested of his property and it is only then that his property would vest in the receiver ; but before that stage has reached, the debtor does and must continue to be the legal owner of the property. In this state of the law, we cannot but hold that the learned Judge below was not right when he came to the conclusion that because of the appointment of an interim receiver in this case, the decree-holders were precluded from taking out attachment against the compensation money of the judgment-debtor lying in the hands of the Jagir Commissioner or that the court was in any manner precluded from proceeding in execution against the same. Appeal No. 25 of 1960, must, therefore, succeed. Turning next to appeal No. 28 of 1961, it has been strongly urged before us that sec. 29 of the Ajmer Land and Revenue Regulation, 1877 (Regulation No. II of 1877) violates Arts. 14 and 19 of the Constitution and therefore must be struck down. It may be pointed out at the very outset that this objection does not appear to have been raised in the court below. But as it is a pure point of law and goes to the very root of the case, we have thought it proper to allow it to be argued before us. Sec. 29 reads as under: "notwithstanding anything contained in sec. 234 or sec 252 of the Code of Civil Procedure (these correspond to sec 52 of the Code of Civil Procedure of 1908) or any other enactment in force at the time the Regulation is passed - no decree for money against an Istim-rardar shall be executed after his death, and no decree for money shall be passed against any person as the representative of a deceased Istimrardar. Provided that nothing herein contained shall prevent the enforcement of a lien or other charge against any property not being part of an Istimrari estate. It clearly seems to us that this provision is violative of both Arts. 14 and 19 (1) (g) of the Constitution. Now if a provision like this is allowed to remain on the statute book, it would clearly mean that firstly no decree for money against an Istimrardar can be executed after his death and secondly that no decree for money shall even be passed against any person as the representative of a deceased Istimrardar. The only exception to this rule is that if there is a lien or other charge against any property of the Istimrardar which is not part of the Istimrari estate, such a lien or charge shall be given effect to and the protection which is available in the main body of sec. 29 will not be operative. In other words, the position boils down to this that if an Istimrardar incurs a money liability, the creditor must not only see to it that he files a suit within the former's lifetime, but he must secure a decree therein in the Istmrardar's life time and what is more, he must so manage things that the decree is fully executed during the debtor's life time because if despite the best will and effort in the world to do so, he fails in the aforesaid objectives, there will be an end of the Istimarardar's liability and neither such a decree would be capable of execution after his death, nor if by any chance it has not been passed in his life time it could possibly be passed against his legal representatives ( howsoever unanswerable the claim might otherwise be ) save in the cases covered by the proviso which may be said to be exceptional. Now such a most extraordinary provision does not, so far as our knowledge goes, exist in any other part of our State at this date and we do not see why a certain class of debtors in our State should alone be entitled to enjoy such an immunity or privilege after the commencement of the Constitution simply because they belong to the former State of Ajmer which was ofcourse a separate unit by itself when the provision in question came to be enacted. A provision like this, in our considered opinion, is clearly repugnant to the principle of equal protection of laws enshrined in Art. 14 of the Constitution. We are quite alive to the principle that while Art. 14 does not favour discriminantion, it does permit legislative classification, because, all laws need not, indeed cannot, be general in charactor and/or universal in application. But it is well settled by numerous decisions of this Court as much as of our Supreme Courts to which it is hardly necessary to refer specifically, that such classification to be permissible must be, first, based on an intelligible basis or differentia which distinguishes persons or things which may have been grouped together for such a purpose from those left outside the group, and,secondly,such differentia is must have a reasonable relation with the object sought to be attained by the enactment in question, or, in other words, it must not be arbitrary. ;