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Achuthan and ors. Vs. Karthiyayani Amma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.M.A. Nos. 36 and 122 of 1959
Judge
Reported inAIR1962Ker105
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 and 150 - Order 40, Rule 4; Limitation Act - Schedule - Article 182
AppellantAchuthan and ors.
RespondentKarthiyayani Amma
Appellant Advocate T.N. Sundara Iyer, Adv.
Respondent Advocate V. Parameswara Menon and; P.A. Mathew, Advs.
Cases ReferredLimitation Act. Seer Rami Reddi v. K. Gurumurthy
Excerpt:
- .....as the income of the property under his management. on february 2, 1959 the learned subordinate judge, cochin, passed the impugned order directing the receiver and his surety to make the deposit in one month.2. the receiver contends that the only court which can call him to order is the court which appointed him; and cited in support chaparaddi v. kabil molla, air 1943 cal 244 and fatechand. tarachand v. parashram maghanmal, air 1953 bom 101, where the expression 'court' occurring in order 40 rule 4 cpc, has been held to refer to the court which appointed the receiver, and no other. the question that came up for consideration in those cases was whether the receiver's liability was to be enforced by a fresh suit at the instance of the party aggrieved or by a proceeding in the court.....
Judgment:

M. Madhavan Nair, J.

1. The first defendant, who is the appellant in C. M. A. 36 of 1959, was appointed receiver of the suit property and the predecessor of the appellants in C. M. A. 122 of 1959 stood guarantee for the due performance of his duties and obligations under the receiving order. The receivership was terminated on 19-8-1947 by a specific order of the court. On 1-11-1950, the plaintiff moved CMP 1911 of 1950, to call upon the receiver and his surety to make a deposit of Rs. 600/-which the receiver was admittedly bound to have deposited in court as the income of the property under his management. On February 2, 1959 the learned Subordinate Judge, Cochin, passed the impugned order directing the receiver and his surety to make the deposit in one month.

2. The receiver contends that the only court which can call him to order is the court which appointed him; and cited in support Chaparaddi v. Kabil Molla, AIR 1943 Cal 244 and Fatechand. Tarachand v. Parashram Maghanmal, AIR 1953 Bom 101, where the expression 'court' occurring in Order 40 Rule 4 CPC, has been held to refer to the court which appointed the receiver, and no other. The question that came up for consideration in those cases was whether the receiver's liability was to be enforced by a fresh suit at the instance of the party aggrieved or by a proceeding in the court which made the receiving order; and it wag in that connection that they laid down the above dictum. The facts here are far different. The present suit was originally in the District Court of Ernakulam, and the receiving order was msde during the trial of the suit by the same Court, Subsequently, with the establishment of a court of Subordinate Judge at Cochin, whose jurisdiction covered the property involved in the suit, the entire case was transferred to that court. C.M.P. 1911 of 1950 came thus to be transferred to the Subordinate Judge of Cochin, though there was no specific order on the CMP, for such a transfer. In the circumstances the transfer of the case from the District Court at Ernakulam to the newly established court of Subordinate Judge at Cochin amounts to a 'transfer of business' of the court within the meaning of Section 150 of the Code of Civil Procedure; and therefore the transferee court got all the powers of the transferor court, inclusive of the power to enforce the obligations of the receiver appointed in the case. The objection as to jurisdiction of the Subordinate Judge to pass the impugned order hag therefore no merits.

3. The learned counsel for the legal representative of the surety for the receiver contends that the remedy against the surety is barred by limitation.

As the receivership itself was terminated on 19-8-1947, the obligation on the part of the surety for any non-discharge of the duties of the receiver should have been enforced within a period of three years from that date. The obligations of the surety are different from those of the receiver, and are governed by Section 145 of the Code of Civil Procedure, whereas the obligations of the receiver under Order 40 of the Code. Any obligation under Section 145 CPC, has to be enforced within 3 years of the cause of action, as per Article 182 of the Limitation Act. Seer Rami Reddi v. K. Gurumurthy, AIR 1933 Mad 219. The order of the court below, so far as it concerns the liability of the surety, cannot therefore be sustained.

4. In the result, the order of the court belowis affirmed as regards the receiver, but vacated asregards the surety or his legal representatives.The CMA. 36 of 1959 is thus dismissed and CMA.122 of 1959 allowed. As there is no appearancefor the respondents, there will be no order as tocosts.


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