J R VAKHARIA AND SONS PRIVATE LIMITED Vs. KANTILAL TEJAJI PA H H OF FULCHAND DEVCHAND

JUDGEMENT

(1.) Second Appeal No. 90 of 1965 is filed against the judgment and decree in Miscellaneous Civil Appeal No. 32 of 1964 decided on 11th December 1964 by the learned District Judge Broach. The respondent judgment creditor obtained a money decree in Civil Suit No. 33 of 1961 against the appellant judgment debtor. The Judgment creditor filed Regular Darkhast No. 24 of 1964 for execution of the aforesaid decree and prayed for appointing a receiver to collect rents of the properties of the judgment debtor in possession of the tenants to satisfy the decree. The Darkhast was resisted by the judgment debtor on several grounds. One of the objections of the judgment debtor was that immovable properties in possession of tenants were not attached rent from the tenants was possible future income of the immovable properties in possession of the tenants and a receiver of possible future income of immovable properties not attached could not be appointed. A receiver could be appointed only in respect of a definite property. The learned Civil Judge overruled the objections of the judgment debtor and appointed a receiver to collect rent from the tenants shown in the schedule attached with the Darkhast. The learned Civil Judge ordered that the receiver should recover rent till the Darkhast amount was realised.

(2.) The judgment debtor filed Miscellaneous Appeal No. 32 of 1964 against the order passed by the learned Civil Judge to appoint a Receiver to collect the rents from tenants of the Judgment debtor. The learned District Judge dismissed the appeal and confirmed the order passed by the learned Civil Judge. In this second appeal Mr. R. M. Vin raised same contentions which were raised before the lower appellate Court. Mr. Vin contended that the holder of power of attorney of the judgment creditor had filed the Darkhast in his own name and therefore the Darkhast was not maintainable. The execution application Exh. 1 is signed by the attorney Kantilal Tejaji as an attorney for Fulchnd judgment creditor. Obviously the Darkhast was filed on behalf of the judgment creditor. Also the power of attorney is authorised under the document of power of attorney to file an application for execution. Therefore there is no substance in this contention of the appellant.

(3.) Next Mr. Vin contended that Darkhast was filed against the Director of the Company named Jalbhai Jamshedji Vakharia and not against the judgment debtor Company itself and therefore execution proceedings could not proceed against the Director of the Company. The learned District Judge has found the Darkhast was not filed against the Director of the Company but it was filed against the Company judgment debtor. Mr. Vin has not been able to show that the Darkhast was filed only against the Director and not against the Company judgment debtor. There is no substance in this contention of the appellant.