NADIRSHAW JAMSHEDJI MODY Vs. PURSHOTTAMDAS GANPATDAS GAJJAR

JUDGEMENT

(1.) [His Lordship, after setting out the facts as above, proceeded:] The lower Court held that the receiver had no right to present the present darkhast as the attachment before judgment in Suit No. 1050 of 1918 was subsisting, and that the receiver as an officer of the Court was bound to take notice of this order for attachment. Secondly, the lower Court held that, if the receiver had a right to execute the decree, the application for execution would be barred by limitation as the Darkhast No. 29 of 1924 was beyond time on the ground that the receiver could not take advantage of the applications filed by Nensukh in the years 1919 and 1922 as he had no right to apply on account of the appointment of the appellant as the receiver on July 19, 1921. On these grounds the lower Court dismissed the application for execution.

(2.) On appeal before us two additional points have been taken on behalf of the respondent, first, that the receiver was appointed pendente lite in Suit No. 2232 of 1921, but the appointment of the receiver was not referred to in the final decree and after the final decree the appointment of the receiver came to an end, therefore, the appellant Mody had no right to execute the decree. On the point of limitation it was argued that the applications made by Nensukh could not be taken advantage of by the receiver as there was the consent decree between Nensukh and Purshottam and the decree was attached by consent in Suit No. 1050 of 1918.

(3.) Dealing with the additional points, we think that the effect of the order of the appointment of the receiver Mody in the preliminary decree was that in addition to his right as a mortgagee or assignee of the decree he was allowed to execute the decree in Suit No. 481 of 1916. A receiver can be appointed to execute a decree under Section 51, Clause (d), of the Civil Procedure Code. The appellant as receiver was, therefore, entitled to execute that decree. With regard to the contention that the order for the appointment of a receiver does not appear in the final decree, it appears that the decree was a mortgage-decree, and the decree, so far as it related to sale of immovable property for the satisfaction of the mortgage debt, had to be made absolute. It was not necessary to make the order for the appointment of the receiver absolute in the final decree. But even if there was a failure to refer to the order of appointment of the receiver in the final decree, we think that the right of the receiver to execute the decree is not, thereby, extinguished. In Halsbury's Laws of England, Vol. XXIV, paragraph 805, page 415, it is laid down that when a receiver has been appointed on an interlocutory application without any limit of time it is not necessary to provide for the continuance of the receiver in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers.