Case Note & Summary
The case involves an appeal against an order of a learned Single Judge granting leave to the first respondent (landlord) to implead the Court Receiver in execution proceedings and to execute a decree for possession passed by a Civil Judge in Delhi. The background is that a lease deed was executed in 1999 between the erstwhile partnership of Ahmed Oomerbhoy and the first respondent for premises in New Delhi. Subsequently, a suit for dissolution and accounts of the partnership was filed in the Bombay High Court, and on 6 December 2000, an ad-interim order was passed appointing the Court Receiver as Receiver of the firm and its assets. In January 2002, the first respondent filed a suit before the Civil Judge at Delhi for recovery of possession on account of arrears of rent. The Court Receiver was impleaded in those proceedings on 16 October 2002, but no leave of the Bombay High Court was obtained to proceed against the Receiver. The suit proceeded ex-parte, and a decree for possession was passed on 23 July 2005. In June 2011, the first respondent took out a Chamber Summons seeking leave to implead the Court Receiver in execution proceedings and to execute the decree. The learned Single Judge granted the leave. The appellant opposed the Chamber Summons, arguing that no leave was sought before the decree was passed, and it was too late to seek leave after the decree. The court considered the legal issue of whether leave can be granted retrospectively. The court held that the requirement of leave is to prevent interference with the court's custody of property (custodia legis) and not to bar the remedy. The court has inherent power to grant leave even after the decree to avoid multiplicity of proceedings and to do justice. The court found that the learned Single Judge had correctly exercised discretion in granting leave, as the decree was passed by a competent court and the landlord should not be forced to file a fresh suit. The appeal was dismissed, and the order granting leave was upheld.
Headnote
A) Civil Procedure - Receiver - Leave to Sue - Leave of court to proceed against a court receiver can be granted retrospectively even after the passing of a decree, as the requirement of leave is to prevent interference with the court's custody and not to bar the remedy. The court has inherent power to grant such leave to avoid multiplicity of proceedings and to do justice. (Paras 3-5)
Issue of Consideration
Whether leave of the court can be granted after the passing of a decree to execute the decree against a court receiver, when no prior leave was obtained before the suit was filed.
Final Decision
The appeal is dismissed. The order of the learned Single Judge granting leave to implead the Court Receiver in execution proceedings and to execute the decree is upheld.
Law Points
- Leave of court to sue receiver can be granted retrospectively
- Property in custodia legis cannot be interfered without court leave
- Court has inherent power to grant leave even after decree
