Ajoy Nath Ray, J.@mdashThis is an application for execution of a decree for possession of immoveable property. The decree by the First Court was passed on May 3, 1991, and the same was confirmed by an appellate judgment on December 14, 1992, in an appeal in this Court on the Original Side, the said appeal being marked as No. 324 of 1991.
2. Execution has been prayed for in prayer A of col. 10 of the Tabular Statement by appointment of Receiver and Police help. An alternative prayer made in prayer B is for usual execution through the intervention of the Sheriff''s office. Costs of the execution application have also been prayed for.
3. In so far as the finality of the decree itself is concerned the same is today beyond question as the Appeal Court has confirmed the decree of the First Court. A SLP to the Supreme Court is said to have been filed by the judgment-debtor, but there being no order of stay granted. I am unable to accede to the submission made on the part of the judgment-debtor that the Tiling of the SLP itself should be treated somehow as a stay in the matter and that an adjournment should be granted for the purpose of seeing the result of the SLP prior to passing of the order in execution. This procedure, in my opinion, would be wholly unwarranted as in such a case the filing of the SLP would automatically operate as a stay without anything more.
4. The first resistance to the execution application was made on the basis that the suit being one transferred under Clause 13 of the Letters Patent from the Alipore Court, this Court would have jurisdiction only up to the stage of passing of the decree, but thereafter, the execution would have to be levied by transmission of the decree again to the Alipore Court. This is novel proposition of law for which there is no previous authority and in my opinipn there should be none for the same by a decision in this case to that effect either. There is no indication in the wordings of Clause 13 of the Letters Patent that after removal of the suit the High Court would not wield the jurisdiction for the purpose of execution also. Even in Section 9 of the CPC where the general jurisdiction as to civil Courts is mentioned merely trial of a suit is indicated and in that expression ''trial'' naturally all proceedings including execution are to be found embodied. In Clause 13 the word try is followed by the word ''determine'', so that the Court is empowered to finish the suit by execution also.
5. It was argued at great length that upon a combined reading of Section 51, Order 21 Rules 35 and Form 11 of Append. ''E'' of the Code of Civil Procedure, it would appear that the mode of execution of a decree for possession of immoveable property by appointment of a Receiver is unknown in law. This was the second submission by Mr. Mitter, I am unable to go that far. Indeed the usual mode of execution of a decree for possession of immoveable property in ordinary cases is through the Bailiff and in case of resistance to the Bailiff by further application for Police help or other reliefs. The Code however contains no specific provisions for applications for Police help though the same is often granted under inherent powers.
6. But there is nothing in the Code which restricts the above to be the only exhaustive mode of execution for recovery of immoveable property. In cases where appointment of a Receiver is justly called for in the interest of justice and convenience of the parties, and where the appointment of Receiver would not cause any undue prejudice to the parties, it is, in my opinion, open in such instances to the executing Court to appoint a Receiver straightway for execution of a decree for possession of immoveable property, even in the first instance, without appointing the Bailiff or other officer of the Sheriff for execution.
7. Mr. Pal appearing for the Petitioner and Mr. Mitter seeking to resist the execution application both cited several authorities regarding the question of appointment of a Receiver in execution. No doubt for any person interested in the way of development of law, it would be a matter of interest to know from those authorities that an order appointing a Receiver in execution is, from that point of view, an order in execution which is of an equitable nature and origin. But in practice it does not matter whether such an order is of equitable origin or of common law origin. The value of those authorities still lies in the appreciation of this idea that in certain cases of execution, the appointment of a Receiver is substantially more just and substantially better for preservation of interest of both parties than the mode of execution through a Sheriff''s officer. One such case would be where the secured property, by appoinment of a Receiver and management under the Receiver, might yield usufructs which would be sufficient to pay off the judgment-creditor and yet maintain the ownership of the property in the hands of the judgment-debtor. Such a way of managing the property on behalf of the judgment-debtor through the intervention of Court so as to achieve results beneficial to both parties could be achieved by appointment of a Receiver but cannot be achieved by any of the methods known to the old established common law modes of execution.
8. It is not necessary to enter into the details of these cases but it must be mentioned that the cases of Thaker''s Press and Directories Ltd. v. Metropolitan Bank Ltd. 67 C.W.N. 350
9. Mr. Mitter did not argue that the executing Court would have no jurisdiction at all to appoint a Receiver in execution over properties situated outside the local limits of the original jurisdiction of this Court. In any event, it is well-settled that such a jurisdiction for appointment of Receiver exists. See Benaras Ice Factory Ltd. v. Amarchand v. Vadnagra AIR 1061 Cal. 422
10. Moreover, the suit being a transferred suit from Alipore and it being nobody''s contention that the Alipore Court would not have had jurisdiction to appoint Receiver over the immoveable property in question, whether in execution or otherwise, this Court would have identical jurisdiction in the transferred case as it is settled law that this Court wields the jurisdiction of the transferring Court in litigations which are transferred to itself from the said transferring Court.
11. Though Mr. Mitter made strenuous and long arguments in resisting the execution through the appointment of a Receiver, yet his resistance to the prayer for execution through the Sheriffs office was limited to the single specific point that one R.L. Bathwal is named in the said prayer also, as in the prayer for Receiver, to be a person who is to be evicted from the premises in question. Mr. Mitter said that a notice to Bathwal was necessary though he was not apearing for Bathwal. This Bathwal is non other than the President of the company which is the judgment-debtor.
12. It is not the law that each and every person claiming through the judgment-debtor is to be given separate notice before an execution order is obtained against him. Just as a judgment-debtor can be summarily evicted within two years of the passing of a decree so can any other person who might be in the property by reason of a claim through the judgment-debtor or by reason of some association with the judgment-debtor. It is upon that principle that a decree against a lessee is executed against licensees of the said lessee without any separate notice to the licensee. It is also upon that principle that a decree against a certain person is executed also against the wife and children of that person who are members of his family but are not parties to the suit. Any real third party interest calls for protection and can claim the same on its own behalf, but it is not every person who is outside the named parties in the suit that is a genuine third party with right to have separate notice than the judgment-debtor. The objection as to Bathwal is therefore wholly unmaintainable as Bathwal will be evicted, if at all, not in his personal capacity but in capacity as President or Director of the judgment-debtor company. Bathwal has no independent right of his own and can stay if and only if the judgment-debtor company stays, but not otherwise.
13. It is true that usually in execution of a decree for possession of immoveable property, Receiver and Police help are neither prayed for nor granted on the first day of moving of the execution application, even if such application is moved within two years of the decree. If on the first day a Receiver or Police help or both are granted it might be that the same could, in some instances, produce cases of undue hardship by reason of sudden eviction of the judgment-debtor without notice. There might be cases of damage to valuable chattels owned by the judgment-debtor. There might also be conceivable cases of avoidable oppression or human suffering. That is why the mode adopted, when the judgment-debtor is not served with notice, is that the Bailiff is sent to ascertain whether there is any obstruction or not. That is the general scheme of the Code of Civil Procedure. But that is not the exhaustive scheme.
14. In a case like the present where the judgment-debtor is well aware of his liability to be evicted and is well aware of the execution application and the prayers therein, no such case of hardship for lack of notice as the above can operate as against him. The judgment-debtor is to make up its mind now, irrespective of execution being levied by the Receiver or by the Bailiff, whether it will deliver up possession or it will not deliver up possession. There is no element of surprise involved. There is no extra prejudice caused to the judgment-debtor by calling upon him to deliver up possession flow to the Receiver than would be caused today if it were asked to deliver up possession instead to the Bailiff. What might work as a matter of prejudice when the judgment-debtor is proceeded against without notice is not likely to work today to the prejudice of the judgment debtor at all, in the facts and circumstances of the present case.
15. If without any order of stay of the decree for possession the judgment-debtor still seeks to put up deliberate resistance to execution then the same is done at its own peril and it will be no answer to say that he would have a greater breathing time even now if the Bailiff were first sent for taking of possession rather than the Receiver. It is not for giving the judgment-debtor breathing time that these methods of execution have been evolved. It is to guard the judgment-debtor against some real prejudice that these were evolved and such real prejudice is totally non-existent in the case before me today.
16. Under such circumstances there will be an order in terms of prayer ''A'' of col. 10 of the Tubular Statement. Mr. Asim Ghose, Barrister, and Mr. Samrat Sen, Advocate, are appointed Joint Receivers for the above purpose and they would be paid an additional token ad hoc remuneration of 10 G. Ms. each since remuneration was earlier paid and the execution still remains, for reasons which are not material for the present purpose, incomplete.
17. The Plaintiff Petitioner would be entitled to the costs of this application assessed at 200 G. Ms.
18. Stay of operation of this order is prayed for, but the same is refused.
19. All parties concerned, their servants, agents and assigns, their Directors, Presidents and all others concerned in the matter, the Receivers, the Police Station and the Officers of the same, to act upon a signed copy of this dictated order on the usual undertaking.
