Hiralal Patni v. Loonkaram Sethiya & Others

Subba Rao J. SUBBA RAO, J.-This appeal by special leave is

directed against the judgment dated October 14, 1960, of the High Court of Judicature at Allahabad con-firming the order passed by the Civil Judge, Agra, directing the Official Receiver to take possession of the property of the appellant.

This case illustrates how the enforcement of an interlocutory order appointing a Receiver made in the interest of all the parties concerned could be obstruct-ed and the object of the order itself be defeated by dilatory tactics adopted by one party or other.

At Agra, there were three spinning mills and one flour mill, all of which together were described as the Johns Mills; and, originally, the John family or their predecessors were the owners of all these mills. At the time the present procedings were initiated, other persons had acquired interest therein. The following persons were the joint owners of th'e mills: (1) Hiralal Patni, the appellant, and Munni Lal Mehra ... 19/40th share; (2) Gambhirmal Pandiya Private Ltd .... 8/40th share; (3) Messrs. John & Co .... 11/40th share; and (4) I.E. John ... 2/40th share. Seth Loonkaran Sethiya, respondent No. 1, advanced large amounts to Messrs. John & Co. on the security of its business assets and stocks. On April 18, 1949, the said Sothiya filed 0. S. No. 76 of 1949 in the Court of the Civil Judge, Agra, against John & Co. for the recovery of the amount due to him by sale of the assets of the said company. To that suit the partners of Messrs. John & Co., for convenience described as "defendants 1st set", and the partners of Messrs. Johns Jain & Co., who were for convenience described as "defendants 2nd set", were made parties. Pending the suit, the said Sethiya filed an application under 0. XL, r. 1, Code of Civil Procedure, for the appointment of a Receiver. By an I96I order dated May 21, 1949, the learned Civil Judge appointed two joint Receivers and directed them to Hiralal Patni v. run the three spinning mills. Hiralal Pa tni filed an Loonkaram appeal against that order to the High Court at Allaha-Sethiya bad, and the said Court by its order dated August 22, 1949, modified the order of the Civil Judge confining Subba Rao the order of appointment of Receivers only to the share of Messrs. John & Co. in John Jain Mehra & Co. Loonkaran Sethiya made another application in the Court of the Civil Judge for the appoint-ment of a Receiver for the property of Hiralal Patni and the learned Civil Judge by his order dated December 1, 1951, directed the Receivers to take possession of the appellant's share in the mills also.

Against this order an appeal was preferred to the High Court and the operation of the said order was stayed pending the disposal of the appeal. On April 5, 1954, the Civil Judge passed a preliminary decree against the defendants therein directing them to deposit the decree amount in court within the pres-cribed time, and in default the plaintiff was given a right to apply for a final decree for sale of the busi-ness assets of the defendants. The decree also gave a right to apply for a personal decree in case the sale proceeds were not sufficient to discharge the decree.

The preliminary decree directed that the Receivers should continue on the property until discharged.

Hiralal Patni preferred an appeal to the High Court against the said preliminary decree and applied for interim stay of its operation. On August 23, 1955, the High Court discharged' the Receivers appointed by the learned Civil Judge, and appointed another Receiver in their place. On March 25, 1955, the learne!l Ci vii Judge prepared a scheme for running the mills, and the. parties preferred appeals against that scheme to the High Court. The said appeals were compromised and under the terms of the compromise the parties agreed to take different mills on lease for a period of three years from the Receiver. On Janu-ary 14, 1956, the Receiver executed a lease in respect of the flour mill in favour of Hiralal Patni for a

872 SUPREM:E! COURT REPORTS ,[1962]

period of three years. Under the lease deed it was agre-Hiralal Patni ed that he should deliver the demised premises to the

v. Receiver upon the expiry of the term. In due course, Loonkaram on March 14, 1956, a final decree was made in the

Sethiya suit for the sale of the properties, but the final decree

was silent in regard to the Receiver appointed earlier. Subba Rao ]. On September 29, 1958, Hiralal Patni applied to the

High Court for extension of the lease by three years. I On January 16, 1959, the High Court rejected the application on the ground that the lease was only a stopgap arrangement and that it was for the Receiver to make a fresh arrangement for the future under the supervision and directions of the Civil Judge, Agra. On January 17, 1959, the Receiver applied to the Civil Judge for instructions whether he should proceed at once to dispossess the appellant. On notice, Hiralal Patni raised various objections and claimed that he was entitled to remain in possession of the property as its owner. The learned Civil Judge disallowed his objections and held that the Receiver derived his authority from the preliminary d11cree, and directed the Receiver to lease out the said flour mill by auc-tion for a period of two years. Pursuant to that order, an auction was held, and the appellant was the highest bidder, and he paid the lease amount and executed a formal lease deed. Not satisfied with · the order of the Civil Judge, Hiralal Patni preferred an appeal to the High Court. The High Court in an elaborate judgment considered the contentions raised on behalf of Hiralal Patni and dismissed tht( appeal. Hence the present appeal.

Learned counsel for the appellant raised before us the following three contentions, which the appellant unsuccessfully raised before the High Court as well as before the Civil Judge: (1) On a true construction of the relevant orders the Receiver has no power to dis-possess the appellant in such a way as to prevent him from working his flour mill. (2) After the passing of the final decree, though the Receiver may continue for the purpose of accounting and discharge of debts, he cannot exercise any powers in respect of the rights of the parties. And (3) in any view, as the appellant acquired a right under a lease deed and continued in I96I possession after its expiry, he could be dispossessed only by a suit and not by a summary procedure. Hiralal Patni

The first question turns upon the construction of v. Loonkara1n the relevant orders. The Civil Judge appointed two Sethiya joint Receivers by an order dated May 21, 1949. It is not necessary to con11ider the said order as the final Subba Rao order that governed the rights of the Receiver and the parties was that made by the High Court on appeal on August 22, 1949. After considering the conten-tions of the 'Parties, the High Court came to the con-clusion that a Receiver should be appointed to be in charge of the entire property, immoveable and move-able, of the defendants 1st set for its protection and preservation. The order of the High Court described the John family as defendants 1st set to the suit, and defendant 5, Hiralal Patni, defendant 6, Munnilal Mehra, and Messrs. John Jain Mehra & Co. as defendants 2nd set. This order was confined only to the properties of defendants 1st set. The High Court further proceeded to state:

"In the finance agreement in plaintiff's favour, the plaintiff was uot given any right to enter into possession on non-payment or to run the mills ..... .

There being no right given to the plaintiff to enter into possession and manage the mills or to have a receiver appointed, a receiver can be appointed only under Order 40, rule 1 of the Code of Ci vii Proce-dure."

Adverting to the contention raised by the defendants that a Receiver could. not be appointed to run the mills, the High Court observed:

"In view of the order that we propose to pass today we do not want to go into that question. In case the mills are not run under the order of the Collector under the United Provinces Industrial Dis-putes Act, or by the partners we propose to give the parties permission to move this court. In case we decide to appoint a receiver to run the mills we shall then consider whether a receiver can or cannot be appointed for the purpose of running the mills."

Then the High Court stated:

874 St:tPRlllME COURT RlllPORTS [1962]

"We have already set out the circumstances which in our opinion make it neces8ary that a recei-Hiralal Patni ver should be appointed to take charge of the pro-

v.

Loonkaram perty of defendants first set whether under the

Sethiya finance agreement of July 1948 there was a charge

created on the property, moveable and immoveable, Subba Rao ]. or not. The Receiver will noi interfere with the

rnnning of the mills except nnder express orders of the Court and to the extent when it becomes neces-sary by reason of the value of the security being jeopardized by any action of the defendants."

Then the High Court pointed out that the Collector had the power under s. 3 of the Industrial Disputes Act to make arrangements for the running of the mills. Finally the High Court observed:

"It may be necessary from time to time to give directions to the receiver. The parties may also want portions of this order to be clarified or other directions obtained. The lower court may give such directions to the receiver or to the parties as it may consider just and proper. In case further directions are necessary or the receiver or the par-ties are not satisfied with the directions given they may move this court for further directions."

Shortly stated, the High Court confirmed the order of the Civil Judge appointing the Receivers and directed them to take charge of the properties of defendants 1st set. The High Court expressly prohibited the Recei-vers from interfering with the running of the mills except under express orders of the court, for at that time it did not think it necessary to direct the Recei-vers to do so. It may be recalled that the Receivers were not appointed for the flour mill of the appellant, Hiralal Patni, as he was one of the defendants belong-ing to the 2nd set. Learned counsel for the appellant contends that this order did not put the mills in the possession of the Receivers and that the Receivers were given only a supervisory control over the share of the defendants 1st set in the mills. 'Vhatever termi-nology may have been used, the fact remains that the Receivers were put in charge of the entire property of defendants 1st set, which includes their share in the mills, though it was equally made clear that the Hiralal Patni Receivers could not directly run the mills without fur-v. ther directions in that regard. Loonkaram

The Civil Judge by his order dated December 1, Sethi ya 1951, directed the Receivers to take possession of the share of defendants 2nd set also. The operative Subba Rao portion of that order reads:

"For all these reasons I have come to the conclu-sion that it is just and convenient that a receiver should be appointed over the share of the defen-dant II set, and I order that the present receivers who are in possession of the defendant 1st set share should also be appointed receivers over the share of the defendant II set. As for the prayer allow-ing the receivers to run the mills the question of running of the mills is already before the High Court as is shown by the compromise dated 8th September 1950. It is not known what has happen-ed after this compromise. The receivers are direct-ed to seek the direction of the Hon'ble High Court on the question of the running of the mills so that there may be no chance of conflicting of orders passed by this court and the Hon'ble High Court, on this matter. The receivers will not interfere with the running of the mills except under express orders of this court and to the extent when it becomes necessary by reason of the value of the security · being jeopardized by any action of the persons run-ning the Mills. The receivers are appointed over the share of the defendants II set only, for the pur-pose of preservation and protection and realization of the rent."

This order runs on the same lines indicated by the High Court in its earlier order in respect of the share of defendants 1st set. What is to be noted is that under this order the Receivers were prohibited from running the mills except under the specific orders of the said court or of the High Court. On April 5, 1954, a preliminary decree was made in the suit, and under that decree the defendants were directed to deposit a sum of Rs. 18,00,152 in court within the prescribed 196z date and in default the plaintiff was. given a right to

apply for a final decree for the sale of the assets of l-liralal I'atni the spinning mills. There was a further direction

v.

Loonkaram that in case the nett sale proceeds of the said property

Sethiya were found insufficient to satisfy the plaintiff's claim,

the plaintiff would get a personal decree against defen-Subba Rao ]. dants 1st set and defendants 2nd set for the balance

of his claim. The Receivers were directed to continue on the property until discharged. Under the prelimi-nary decree, the plaintiff became entitled not only to the sale of the assets of the spinning mills but also to a personal decree against all the defendants for recover-ing any balance that might still be due to him after the sale of the said properties. What is more, the RE;ceivers were expressly directed to continue till they were dis-charged, and as the decree did not specify the powers of the Receivers, it must be held that they continued to exercise such powers as they had under the previ-ous orders of the courts dated August 22, 1949 and December 1, 1951.

On March 25, 1955, the learned Civil Judge, Agra, prepared a scheme for the running of the three spin.n-ing mills, and the parties preferred two appeals to the High Court against the scheme. On July 22, 1955, a compromise was effected between the parties in the said two appeals and the appeals were disposed of in terms of the compromise by order of the High Court dated August 23, 1955. As the terms of this order are rather important in the context of the contentions raised before us, we would rel1d the relevant portions I thereof:

Clause 1. That the aforesaid parties have with-out prejudice to their rights and liLigaLion between them have after deliberate consideration and as a special effort to make arrangements for running the Johns Mill have decided that the three spinning Mills and Flour Mill situate in Agra should be run by the parties in accordance with the terms and conditions . . . set . forth . below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (vi) That the lease shall be granted by the receiver on terms and conditions approved by the Court.

(ix) If any lessee shall fail to run the Mill after delivery of possession or pay the lease money or fail Hiralal Patni v. to carry out the arrangements arrived at between Loonkaram the parties for a period of three months, the recei vcr Sethi ya shall take possession of the Mills and with the per-mission of the court shall lease out that particular Subba Rao mill to any of the parties excepting the party in default who may offer the highest bid in accordance with the orders passed by the Civil Judge in this matter.

Clause 4. .. ................................................ .

The arrangement embodied in this document is only for the purpose of working the mills by the petitio-I ners. Nothing contained in this document will

affect the rights and obligation of the parties which are or may be the subject matter of suit No. 76 of 1949 or in any litigation between the parties and notwithstanding anything contained herein but subject :however to the express provision in the preceding paragraph of this clause it will be open to the petitioners to seek their remedies in any manner provided by law, and without prejudice to the rights of the parties to obtain a stay order from the Hon'ble High Court or any other Court."

What is the effect of this order? Learned counsel for the appellant contends that this order embodies an internal arrangement between the defendants for running the mills and that it does not in any way enlarge the scope of the orders dated August 22, 1949, and December 1, 1951, under which the Receivers were appointed. We do. not think that the scope of the orders is so limited. The combined effect of the said earlier orders was that the Receivers should take possession of the entire properties of the two sets of defendants. But the Receivers ~ere not given the power to run the mills without specific directions to that effect by the court. The Civil Judge by his order dated March 25, 1955, evolved a scheme for running the mills; and by that order he laid down the condi-tions and directed the Receivers to· advertise calling for applications from persons, including the Govern-ment, who were willing to run the mills. This order

was only confined to the three spinning mills. The compromise order in the appeals covered also the flour Hiralal Patni

v. mill. Though different mills were to be run by diffe-Loonkaram rent defendants by obtaining lease deeds, that was only

Sethiya a mode evolved for running the mills under the super-

vision of the court. Under the compromise, the leases Subba Rao ]. were to be executed in favour of the Receiver. It also

provided that in case the lessees did not carry out the terms of the lease, the Receiver should take posses-sion of the mill in respect of which default was commit-ted and, with the permission of the court, should lease out the mill to any of the defendants other than the defaulting party. The clauses saving the rights of the parties obviously refer to,their rights which were the y subject-matter of the suit and they could not have any reference to the terms agreed upon under the compro-mise order. Under the compromise order, the courts, though by consent, gave directions for running the mills which they left out for future consideration in their ear.lier orders. The result was that under the earlier orders, all the properties of the defendants were put in possession of the Receivers, and under the compromise order, the Receiver was directed to run the mills under the agreed scheme.

Pursuant to the terms of the compromise order, on January 14, 1956, the Receiver executed a lease in favour of the appellant in respect of the flour mill for ,_ a period of three years, and under that lease deed the appella.nt got possession from the Receiver and agreed "To yield up all the demised premises with all fixtur.e, improvement and replacements thereto in good and tenantable repair and condition in accordance with the lease covenants in that behalf herein contained upon the expiry of the term hereby created or the sooner determination of these presents as herein provided." Whatever ambiguity there may have been, this lease deed dispels it, for' under the lease deed the appellant admits the legal possession of the Receiver, takes a lease under him, and agrees to put him back in posses-sion after the expiry of the lease. On September 29, 1958, the appellant again applied to the court for .... extension of the lease for three more years, thereby accepting his possession under the Receiver, though the court on January 16, 1959, dismissed that applica-Hiralal Patni tion on the ground that the lease was only a stopgap v. arrangement and that it was for the H.eceiver to make Loonkaram a fresh arrangement for the future under the supervi-Sethiya sion and directions of the Civil Judge under whose preliminary decree he derived authority. It is mani-Subba Rao fest from the aforesaid orders that the Receiver was put in possession of the entire property of the defen-dants, that he was not empowered to run the mills personally, that by subsequent orders he was directed to lease out the mills to the parties in the !llinner prescribed and that under the final order he was to take over possession and make other arrangements for running the mills. In the premises, we find it very difficult to accept the argument of!earned counsel that the Receiver was not put in possession of the mills, but the mills continued to be in the possession of the defendants. We hold on a construction of the relevant orders that the flour mill of the appellant was also put in the possession of the Receiver and that the appel-lant was running the said mill under the compromise formula.

The second contention of learned counsel for the appellant is that the Receiver appointed in the suit ceased to be a Receiver qua the rights of the parties when the final decree was made by the Court. This contention leads us to the consideration of the ques-tion whether a Receiver appointed in a suit ceases to be such automatically on the termination of the suit. Neither s. 5l(d) nor Order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership. We must, therefore, look for the solution elsewhere. Some of the authoritative text-books on receivers may usefully be consulted in this connection.

In Halsbury's Laws of England, 3rd edn., Vol. 32 (Lord Simonds), at p. 386 under the heading "Dura-tion of appointment by court", the following state-ment occurs:

"When a receiver is appointed for a limited time, as in the case of interim orders, his office deter-mines on the expiration of that time without any

880 SUPRE;ME COUR'l' REPORTS (1962]

z96r further order of the court, and if the appointment

is 'until judgment or further order' it is brought to I-liralal Patni an end by the judgment in tho action. The judg-

v ment may provide for the continuance of the recei-Loonkaratn

Sethiya ver, but this is regarded as a new appointment. If

a further order of the court, though silent as to the SulilHt Nao ]. receivership, is inconsistent with a continuance of

the receiver, it may operate as a discharge.

When a receiver has been appointed on an inter-locutory application without any limit of time, it is not necessary to provide for the continuance of his appointment in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers. So, also the appointment of a receiver generally by the judg-ment in an administration action need not be con-tinued by the order on further consideration." In Kerr on Receivers, 12th edn., in chapter XII under the heading "Discharge of a Receiver", the legal position is explained thus:

"The appointment of a receiver made previously to the judgment in an action will not be superseded by it, unless the receiver is appointed only until judgment or further order."

In High on the Law of Receivers, 4th edn., the follow-ing observations appear at p. 985:

"The functions of a receiver usually terminate with the termination of the litigation in which he was appointed. And when the bill upon which the appointment was made is afterwards dismissed upon demurrer, the duties of the receiver cease as between the parties to the action. . ........ And al-though as between the parties to the litigation his functions have terminated with the determination of the suit, he is still amenable to the court as its officer until he has complied with its directions as to the disposal of the funds which he has received during the course of his receivership. . ........... But an order of discharge does not necessarily follow, in all cases, because of the determination of the suit, and the court may, upon sufficient cause shown,

either discharge or continue the receiver, according to the exigencies of the case."

HiYalal Patni The learned author makes a further distinction at v. p. 986 between the following two classes of cases: Loonkara;n

"Since the final decree in the cause is generally Sethiya decisive of the subject-matter in controversy, and determines the right to the possession of the fund Subba Rao or property held by the receiver, it is usually the case that such decree supersedes the functions of the receiver, since there is then nothing further for him to act upon, although it would seem to be still necessary that a formal application be made for his discharge. But when the court by its decree does not attempt to decide the main question in contro-versy, and leaves the receiver's possession undis-turbed, it cannot be held to have the effect of ope-rating as a discharge, or of superseding his func-tions."

Woodroffe in "The Law relating to Receivers in Bri-tish India", 4th edn., states at p. 22 thus:

"0. XL, r. l{a) now expressly provides that a receiver may be appointed whether before or after decree. As long as the order appointing a receiver remains unreversed, and as long as the suit remains a lis pendens, the functions of the receiver continue, until he is discharged by order of the Court."

The law may briefly be stated thus: (1) If a recei-ver is appointed in a suit until judgment, the appoint-ment is brought to an end by the judgment in the action.. (2) If a receiver is appointed in a suit, with-out his tenure being expressly defined, he will con-tinue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the par-ties to the litigation, the receiver's functions are usu-ally terminated, he would still be answerable to the court as its officer till he is finally discharged. ( 4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require.

Let us now apply the said principles to the facts of the instant case. The order appointing the Receivers I96I did not expressly state that the Receivers' term would

expire on the termination of the suit. Under the lliralal Patni preliminary decree the plaintiff became entitled to

v.

Loonkatam apply for the passing of the final decree for the sale

Sethiya of the property charged and also to get a personal

decree against the defendants 1st set and 2nd set for Subba Rao ]. the balance of his claim remaining due after the sale.

The preliminary decree expressly directed the Recei-vers to continue until discharged. Pursuant to the preliminary decree, a final decree for sale of the said properties was made, but the said decree did not in any way modify the direction given in the prelimi-nary decree in respect of the Receivers. The combin-ed effect of the two decrees is that the final decree did not terminate the snit, for the plaintiff would still I be entitled to get a personal decree in case the sale proceeds were not sufficient to pay off his dues. It cannot, therefore, be said that the suit has been finally disposed of. That apart, the preliminary decree in express terms directed the Receivers to continue till they were discharged. In the circumstances, "\le are definitely of the opinion that the Receivers continued by the preliminary decree are entitled to function in that capacity till they are discharged.

The third contention of learned counsel for the appellant_ raises the question whether in the circum-stances of this case the Receiver could fjj,cover posses-sion from the appellant only by instituting a regular suit against him for_eviction. The facts germane to this contention may be briefly recapitulated. On January 14, 1956, the appellant executed a lease deed in respect of the flour mill in favour of the Receiver and there was an express recital therein that the lessee would deliver possession to the Receiver of all the demised premises upon the expiry of the term of lease. The said lease was executed as a part of a com-promise scheme for running the mills. The term of the lease had expired. Thereafter the court directed the Receiver to take posses)lion of the property and auction the same to the highest bidder. The question is whether under the circumstances a court can dis-possess the appellant under a summary process or whether it could only do so by directing the Receiver to file a suit for eviction. The material provisions of Order XL of the Code of Civil Procedure read: Hiralal 'Patni v. Rule 1. (1) 'Vhere it appears to the Court to be just Loonkaram and convenient, the Court may by order-Sethi ya

(b) remove any person from the possession or Subba Rao custody of the property;

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realiza-tion, management, protection, preservation and improvement· of the property, the collection of the rents and profits thereof, .........

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of pro-perty any person whom any party to the suit has not a present right so to remove.

Under this Order, a receiver is an officer or represen-tative of the court and he functions under its direc-tions. The court may, for the purpose of enabling the receiver to take possession and administer the property, by order, remove any person from the possession or custody of the property. Sub-r. (2) of rule 1 of the Order limits that power in the case of a person who is not a party to the suit, if the plaintiff has not a present right to remove him. But when a person is a party to the suit, the court can direct the receiver to remove him from the possession of the pro-perty even if the plaintiff has not a present right to remove him. In the present case, the appellant was a party to the suit and the court, through the Recei-ver took possession of the mill and thereafter the Receiver, during the course of the administration of the property, under a compromise arrangement for running the mills, leased o.ut the flour mill to the appellant with an express condition that the appel-lant should redeliver the property to the Receiver on the expiry of the lease. Admittedly the term of the lease had expired, and the court directed the Receiver to take possession of the mill. The court, in our view,

was legally competent to confer a power on the Recei-ver under Urder XL, r. l(l)(d), of the Code of Civil Hiralal Patni Procedure to recover the property from the appellant.

v. The decisions cited at the Bar are not of much Loonkaram

SeJhiya relevance to the present case. Krista Chandra Ghose

v. Krista Sakha Ghose (1) is a case where a lease was Subba Rao j. granted by a Receiver acting under an order of court

and the possession of the property had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid on the ground that it was obtained by collusion. There the court held that no summary order could be passed to set aside the lease and the proper remedy would be by a suit against the Receiver and also against the lessee. In that case the lessee, though he was a party to the suit, acquired a leasehold right under the lease deed and third parties, who offered a higher rent, sought to question the lease on the ground of collusion. Woodroffe, J., held that the dispute could only be decided in a properly instituted suit. The Rajasthan High Court in Nanakchand v. Pannalal (') held that a Receiver could not recover the rent from a lessee in a summary order of the court, but should file a suit just like any other land-lord. The Allahabad High Court in Loonkaran v. I. N. John('), though it conceded that where a lease had been executed by the Receiver, the lessee may ordinarily be evicted from the demised property only by a regular suit, held that where after the expiry of the term of the lease granted by a Receiver, the sub-lessee in possession gave an undertaking to the court that he would vacate the premises in favour of the prospective lessee if no fresh lease was granted in his favour, the court has power to eject the sub-lessee in its summary jurisdiction. The learned Judge observ-ed at p. 59 thus:

"By givlng an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court-auction the appellant, in our view, submitted himself to the (1) (1908) l.L.R. 36 Cal. 5" (2) A.I.R. 1951 Raj. 15z. (3) A.I.R. 1961 All. 59.

jurisdiction of the court. The appellant could there.

fore be ejected by summary process, instead of by a suit." Hiralal Patni v. So too, the High Court of Travancore-Cochin in Siva. Loonkaram rajan v. Official Receiver, Quilon District (1) held that Sethiya where the period of the lease granted to the receiver had already expired and as per th c express sti pula-Subba Rao tion in the lease deed the lessee was bound to sur-render possession of the property without raising any objection at all, the Court could summarily evict him.

The learned Judge made the followng observations at p. 39:

"Even though the lease deed stands in favour of the receiver the express undertaking given by the lessee for an unconditional surrender of the pro-perty is in favour of the court. .. .... The summary enforcement of the undertaking thus taken by the l court is only a step towards the discharge of the

duties of the court in the management of the estate and it cannot be said that the court has lost its jurisdiction in that direction merely because the property has been in the possession of a lessee."

Further -citation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re-entry under the lease deed on the receiver. It is not neces-sary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for run-ning the mills by the different partners, though he was put in possession under a document .described as a lease deed. In effect the Receiver, during the course of. the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant ex-pressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of

deciding the conflicting claims of a lessee and a third party arises in this cas~; nor is the court called upon Hiralal Patni to pronounce on the vested rights of a lessee in con-

v.

Loonkaram flict with those of the Receiver. But this is a simple

Sethiya case of a court in the course of its administration of

the estate through the agency of a receiver making a Subba Rao ]. suitable provision for the running of the mills. As

the agreed term had expired, the court, in our view, could certainly direct the appellant to put the mill in I the possession of the Receiver.

Lastly it has. been brought to our notice that an application for the discharge of the Receiver is pend-ing in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law.

In the result, the appeal fails and is dismissed with J costs.

Appeal dismissed.

SHRI MADHA V LAXMAN V AIKUNTHE

v.

April I2, THE STATE OF MYSORE

(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,

N. RAJAGOPALA AYYANGAR and

J. R. MUDHOLKAR, JJ.)

Public Servant-Reversion to substantive rank-If and when punishment-Test-Recovery of arrears of salary-Limitation-Government of India Act, 1935 (26 Geo. 5, ch. 2), s. 240(3)--Con-stitution of India, Art. 3n(2)-lndian Limitation Act, 1908 (9 of r908), art. ro2.

The appellant, who held the rank of a Mamlatdar in the first grade and was officiating as District Deputy Collector, was alleged to have' wrongly charged travelling allowance for 59 miles instead of 5 I and was, as the result of a departmental enquiry, reverted to his substantive rank for three years and

CIVIL APPELLATE JURISDICTION: Civil Appeal No. llO of 1961.

Appeal by special leave from the judgment and order dated October 14, 1960, of the Allahabad High Court in First Appeal from Order No. 41 of 1959.

C. B. Agarwala, Rameshwar Nath, S. N. Andley, J.B. Dadachanj and P. L. Vohra, for the appellant.

K. R. Choudhuri, A. K. Kirty and Ratna Rao, for respondent No. I.

I96I S. P. Sinha and M. I. Khawaja, for respondents

Nos. 2, 3 and 4.

Hiralal Patni

v. H. N. Sanyal, Additional Solicitor-General of India' Loonkaram and G. O. Mathur, for respondent No. 5.

Setkiya Naunit Lal, for respondent No. 7.

1961. April 11. The Judgment of the Court was delivered by