H.L.GOKHALE - (1.)Respondent Nos. 2 and 3 in Appeal from Order No. 629 of 1995 raised a loan of over Rs. 17 lakhs through three documents and mortgaged two shops to respondent No. 1, Punjab National Bank, sometime in the year 1985 for securing the said amount. Not a single paisa has been returned so far and the amount due by now with interest thereon comes to about Rs. 40 lakhs. Respondent No. 1 bank filed three suits on 30th October 1986 to enforce the mortgage by sale of the property and to recover the money, the three suits being Special Civil Suit Nos. 216, 217 and 218 of 1986 in the Court of the learned Civil Judge (Senior Division) at Rajkot. An order of attachment before judgment concerning these two shops was obtained on 5th May 1987. Subsequently, preliminary decree was obtained on 30th September 1987 and final decree on 28th December 1994. Respondent No. 1 filed execution applications on 17th May 1995 and the proclamation for auction has subsequently been issued in August 1995. Respondent No. 1 bank applied for appointment of receiver by Exh. 16 on 20th September 1995. It is at this stage that the appellants in A.O. No. 629 of 1995 filed two applications bearing Exhs. 20 and 21. They contended that they are the tenants of the two shops which have been let out to them by respondent Nos. 2 and 3 and prayed that the proposed action be stayed. These two applications were rejected by the learned Judge by his order dated 5th October 1995. Against these two orders, Civil Revision Application Nos. 2159 and 2160 of 1995 have been filed separately by the present appellants. As far as the bank's application for appointment of recover is concerned, the same came to be granted on 20th October 1995. That order is challenged by the present appellants in A.O. No. 629 of 1995. The very order appointing receiver is challenged by respondent Nos. 2 and 3 in their appeal being A.O. No. 639 of 1995.
(2.)Before I deal with the arguments of the learned Counsels for the parties, what is material to note is that it is not disputed that the appellants have come into these two shops on 1st June 1989, that is, two years after the attachment before judgment was levied. It is further interesting to note that they filed Standard Rent Applications against respondent Nos. 2 and 3 on 14th December 1989 and although summons was made returnable on 16th January 1990, consent terms were filed on 17th December 1989 and the application was granted on 18th December 1989.
(3.)I heard at length Mr. J. R. Nanavati, Senior Counsel appearing with Mr. A. R. Mehta for the appellants in A.O. No. 629 of 1995 and Mr. S. M. Shah, Senior Counsel appearing with Mr. M. S. Shah for the respondent No. 1 bank and Mr. Y. S. Lakhani, learned Advocate for respondent Nos. 2 and 3. The arguments of Mr. Nanavati for the appellants have been adopted by Mr. Y. S. Lakhani for respondent Nos. 2 and 3. The main argument of Mr. Nanavati has been that as far as the order dated 20th October 1995 appointing the receiver is concerned, the same is bad in law. The application made for appointment of receiver itself does not have necessary averments to justify the same nor has the learned Judge given the necessary reasons to support it. He further submits that the application to stay the auction has also been wrongly rejected. It is the submission of Mr. Nanavati that the attachment of the property effected earlier was itself void being in breach of provisions of Order XXI Rule 54(2) and in that behalf he relied on judgment of Privy Council in the case of Mathia Shetty v. Palniappy Shetty, reported in AIR 1928 PC 139 and contended that if the attachment itself is void ab initio, the subsequent actions of auction etc. based thereon thereafter will equally be bad. In this connection, it is material to note that this plea has not been taken in the tenants' applications moved before the trial Court at all and in that view of the matter, Mr. Nanavati did not press this submission at length. He, however, submitted that as far as the appointment of receiver is concerned, the same could not be held to be valid. No grounds have been made out in the bank's application to the trial Court to point out as to how the appointment of receiver was necessary, just and convenient and that as a result thereof the right of the tenants to obstruct their eviction at a later point of time under Order XXI Rule 95 gets affected. Mr. Nanavati submitted that Order XL Rule 1(2) of Civil Procedure Code does not authorise the Court to remove from the possession or custody of the property any person whom any party to the suit does not have a present right so to remove. Mr. Nanavati submitted that by appointing a receiver, the right of a third party under Order XL Rule 1(2) not to be removed from the possession is sought to be affected and that the party concerned is entitled to wait until necessary action is taken under Order XXI Rule 95. In this behalf, he has relied on the judgment reported in AIR 1920 Madras 986 in the case of Kumaraswami v. Pasupathia Pillai. In that case, the lessees were sought to be evicted by seeking the appointment of a receiver. In those facts, the Court held that this cannot be done on an interlocutory application. That was not a case where third parties were inducted after an order of attachment before judgment. The facts in the Madras case are altogether different and the proposition laid down in those circumstances will not apply herein. Apart from other submissions, Mr. Nanavati laid great emphasis on the judgment of the Supreme Court in 1981(2) SCC 675 in the case of Dev Raj Dogra v. Gyanchand Jain and contended that an auction-purchaser is not entitled to recover physical possession from a party in view of the provisions contained in Order XXI Rule 95 of Civil Procedure Code and that the auction-purchaser must be held to be entitled only to a symbolic possession and nothing more. Mr. Nanavati, therefore, submitted that it was just and necessary that all these three orders ought to be interfered with and set aside.