Radheshyam Hardeo Nimodiya Vs. Court Receiver, High Court and ors. - Court Judgment

Excerpt:
property - tenancy rights - order 40 rule1 of code of civil procedure, 1908 - appellants claim to be tenants of suit property who have acquired tenancy rights from their father who was inducted as tenant by court receiver - right of management of property conferred on receiver does not imply his power to grant lease subsisting beyond period during which he remains in possession - no rights can be created in property pendente lite so as to incapacitate court from granting relief in accordance with final decree - order evicting appellants from suit property justified as no tenancy rights devolve upon them. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - shreeji properties, recording, inter alia, that the second respondent (original plaintiff) has no objection to the decrees dated 9th july 1935 and 1st july 1937 being marked as fully satisfied. (d) by consent the preliminary mortgage decree dated 9th july 1935 and the decree absolute for sale herein dated 1st july, 1937 passed in the above suit be marked as fully satisfied. 637. 6. now, what a mortgagee in possession could not have done, the court receiver also could not do, unless he was specifically authorised to do so in exceptional circumstances.p.d. desai, c.j.1. the appellant claims that his father was inducted as tenant in the suit property by the court receiver appointed under the preliminary decree passed on 9th july 1935 in the suit filed by the second respondent for enforcement of the mortgage by sale of the mortgaged property, that is, the suit property. it is not in dispute that the court receiver was appointed with all powers under order xl, rule 1(d) of the code of civil procedure. the receiver took possession of the mortgaged property on or about 20th october 1936. the final decree for sale of the suit property was passed on 1st july 1937 and thereunder also the court receiver was continued in possession upto the time of completion of the sale thereof by the commissioner i.e. the commissioner for taking accounts.2. the suit property was thereafter auctioned in a revenue case by the tahsildar, but the said auction sale was set aside. we are not concerned with those proceedings at this stage and no more needs to be stated regarding the same. for the purposes of the present case, it is sufficient to state that by a registered deed of conveyance dated 26th december 1985, the original defendants sold and assigned their right, title and interest, including the equity of redemption, in the suit property to messrs. shreeji properties and that thereafter an application was orally moved before the learned single judge inviting him to pass an order in the terms of the minutes signed by counsel for all the parties, including messrs. shreeji properties, recording, inter alia, that the second respondent (original plaintiff) has no objection to the decrees dated 9th july 1935 and 1st july 1937 being marked as fully satisfied. the learned single judge thereupon passed an order on 28th october 1987 which, in material parts reads as follows :'(a) name of defendants nos. 1 and 2 be deleted. (b) by consent the name of the applicants brought on record of the suit in place and stead of the defendants 3 to 5. (c) the plaintiffs to carry out the necessary amendments during the course of one week. (d) by consent the preliminary mortgage decree dated 9th july 1935 and the decree absolute for sale herein dated 1st july, 1937 passed in the above suit be marked as fully satisfied. (e) by consent the court receiver, high court, bombay, appointed by the said preliminary mortgage decree and order dated 9th july, 1935 is hereby discharged without passing accounts. the court receiver is directed to hand over possession of the suit property along with all papers, documents, deeds filed relating to the suit property with him and the balance amount, if any, in his hands to the applicants. if any amount is due and owing to the court receiver, the applicants undertake to pay the same to the court receiver. (f) no order as to costs.'3. on 6th february 1991, the court receiver made a report to the learned single judge to the effect that the father of the appellant was amongst the unauthorised occupiers of the suit property and that he was in possession of the portion marked 17 on the plan annexed to the report. it was further stated in the report as follows :'12. it appears that the said auction purchaser had illegally inducted vishnu saw mills on the entire portion shown as 16 and 17 on the plan at the nominal compensation of rs. 25/- per month. it further appears that the owners of the said vishnu saw mills in their turn inducted shri hardeo mathuradas nimadia in the portion marked 17. it further appears that the owners of the vishnu saw mills had filed suit against the said hardeo mathurdas nimadia and others for eviction which was resisted by them contending that they had taken the premises directly from the court receiver. the suit was dismissed and against the findings of the district court in appeal both the parties filed separate second appeals in this hon'ble court being second appeal no. 526 of 1965, and second appeal no. 470 of 1965. both the said appeals were treated as cross appeals and were heard together and dismissed by a common judgment by his lordship mr. justice dighe on 26th november, 1976. by the said judgment it was inter alia held that neither of the parties have got any title in the suit land as tenant of the court receiver.'the court receiver submitted that the property came to be occupied by the father of the appellant, amongst others, after the court receiver took possession and charge of the property and that since he was directed to hand over possession of the property back to the defendants, it was necessary to pass orders for eviction of those occupants. accordingly, a specific direction from the court was prayed for to the appellant, amongst others, to hand over vacant possession of the portion in his possession to the court receiver.4. the learned single judge by his order under appeal dated 31st july 1992 granted the prayer and directed further that in the event of the occupants, including the appellant, failing to hand over vacant possession of the portions of the property, the court receiver should evict them with the help of police, if necessary. in the course of his elaborate order, the learned single judge observed that it was not in dispute that all the occupants came on the property after the court receiver took possession. the occupants claimed that they had been granted leases or tenancies of their respective portions by the court receiver and that, therefore, they were protected tenants under the c.p. and berar letting of houses rent control order, 1949. for considering the validity of this claim, the learned single judge proceeded on the assumption that the court receiver purported to grant leases or tenancies as alleged and that, subject to the legal question about the right of the court receiver to make such grants, the occupants were entitled to be protected under the c.p. and berar letting of houses rent control order, 1949. after examining at length the decision cited before him, the learned single judge came to the conclusion that during the time the property remained in the custody/charge of the court or in the hands of the receiver on behalf of the court, no rights could be created in the property which would defeat the ends of justice and incapacitate the court from giving relief to the one who is entitled thereto according to the decree or final order of the court. according to the learned single judge, where a receiver, after taking charge of the property, creates a lease, then it is necessary to ascertain whether the purported lease is legal and proper and, for this purpose, it is necessary to take into consideration the scope and subject matter of the suit or the orders passed by the court in the suit which would make the receiver's act in creating the lease or tenancy, legal or illegal and, if the lease or tenancy is illegal, then the court would not recognise such a tenancy as coming in the way of summary eviction of the occupants. in the opinion of the learned single judge, it was the duty of the court to return possession of the property in the same condition in which the receiver took it and the provision of order xxi, rule 97 did not come into play in such a situation nor a regular suit was required to be filed for the recovery of possession. the intervention of rent possession law also would not alter the position and give protection to the person in possession. such a person would retain or continue in possession only subject to the directions and orders of the court.5. in our opinion, the learned single judge was right in taking this view which is unexceptionable. it is settled law that even a mortgagee in possession cannot create a lease which would subsist after the extinction of the mortgagee's interest and that, if a lease of that nature was purported to be created, it would not be an act of prudent management. such a lessee cannot claim the protection of the rent act (see omprakash v. ganga sahai), a.i.r. 1978 s.c. 108. tenancy created by the mortgagee in possession does not survive the termination of the mortgagee's interest. the termination of the mortgagee's interest terminates the relationship of landlord and tenant. there being no landlord and tenant, the tenant cannot claim the protection of rent control legislature. the principle of section 76(a) that acts done bona fide and prudently in the ordinary course of management may bind even after the termination of the title of the mortgagee in possession applies ordinarily to the management of the agricultural lands and has seldom been extended to urban property. (see sachalmal parasram v. ratanbai), a.i.r. 1977 s.c. 637.6. now, what a mortgagee in possession could not have done, the court receiver also could not do, unless he was specifically authorised to do so in exceptional circumstances. in the present case, the power to grant lease or tenancy subsisting beyond the period during which the court receiver was to remain in possession was not expressly conferred upon him. such a power cannot be implied by reason of conferment upon him of the power of management of the suit property in view of the fact that no rights could be created in the property pendent lite which would defeat the ends of justice and incapacitate the court from giving relief in accordance with the decree of final order that may be passed by the court.7. about the court's power to summarily evict a lessee inducted by the receiver, as earlier pointed out, there can be no doubt or debate. it is the duty of the court to return possession of the property to the person entitled in the same condition in which the receiver took it from him. the maxims actus curiae nominal gravabit, that is, an act of the court shall prejudice no man, and actus legis nominiest damannosus, that is, an act in law shall prejudice no man, and the public policy underlying them, ensure that anyone who gets possession through the act of the court can continue to remain in possession only subject to the directions and orders of the court. if the court directs or authorises the court receiver to summarily evict him, he cannot possibly have any legitimate grievance. for the foraging reasons, in our opinion, there being no infirmity in the order under appeal, the appeal is summarily dismissed.