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Gulab Singh Vs. Bhan Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 261 of 1964
Judge
Reported inAIR1969Raj109
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 40, Rule 4 - Order 43, Rule 1
AppellantGulab Singh
RespondentBhan Mal and ors.
Appellant Advocate D.K. Soral, Adv.
Respondent Advocate J.S. Rastogi, Adv.
DispositionRevision petition dismissed
Cases Referred and Samhantta Singh v. Bhagwati Singh
Excerpt:
.....due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver. but there is no prayer in the application that for making good the loss the receiver's property may be attached and sold......is concerned, apart from the fact, that no order has been passed under the operative part of the rule for attachment and sale of the receiver's property even a prayer for attachment and sale of the receiver's property has not been made. thus, no order, as contemplated by order 40, rule 4 c. p. c. can be said to have been passed by the lower court in this case and, therefore, it cannot be said that the order under revision is appealable under order 43, rule 1 (s) c. p. c. in these circumstances, i do not see any force in the preliminary objection and hereby overrule it. 3. coming to the merits of the case, the question is has the lower court committed any error in exercise of its jurisdiction the learned munsif has held and doubtless correctly, that the allegations made by the plaintiff.....
Judgment:
ORDER

C.M. Lodha, J.

1. The plaintiff filed a suit against Manohar Lal, Bhan Mal and Jamna Lal in the Court of Munsiff, Kota, on 5-11-60 for dissolution of partnership and for rendition of accounts. A preliminary decree was passed on 9-2-61, and Shri Kan-haiya Lal, Advocate, who had already been appointed a receiver during the pendency of the suit, was also appointed commissioner to go into the accounts and to carry out thedirections contained in the preliminary decree. While the matter was pending for passing of final decree, an application was made by the plaintiff on 12-5-63 to the effect that the receiver, viz. Shri Kanhaiya Lal, had not carried out his duties inasmuch as he did not file the report in time and also did not file suits against several debtors of the partnership firm with the result that claims amounting to about Rs. 20,000/-due to the firm, became time barred. It was, therefore, prayed that the receiver Shri Kanhaiyalal may be directed to make good the loss occasioned to the plaintiff on account of his gross negligence in carrying out his duties as a receiver. Shri Kanhailal gave a written reply and refuted the allegations made against him. He pleaded that he had filed a number of suits, some of which had been decreed. He also submitted that the parties had not co-operated with him in disclosing the correct state of affairs of the firm. He further stated that the firm used to keep duplicate and triplicate sets of accounts with the result that the correct position of the firm could not be known without the assistance of the parties. The learned Munsif recorded the statement of the plaintiff Gulab Singh on 5-2-64 and by his order dated 25-2-64 dismissed the plaintiff's application holding that there was no material on the record on the basis of which the receiver could be made liable for payment of any amount to the plaintiff. Aggrieved by the order of the learned Munsif the plaintiff has filed this revision.

2. Mr, Rastogi, learned counsel for the non-petitioner Mr. Kanhaiyalal, raised a preliminary objection regarding the maintainability of the revision. He urged that the order under revision clearly falls within the ambit of Order 40 Rule 4 C. P. C., even though no provision has been mentioned in the application. It is argued that an order passed under Order 40, Rule 4 C. P. C. is appealable under Order 43 Rule 1 (S), C. P. C. and since no appeal has been filed, this revision is not maintainable. For a* correct decision of the point raised by Mr. Rastogi, it is necessary to see whether the order passed by the learned Munsif comes within the ambit of Order 40, Rule 4, -C. P. C. which reads as follows :--

'Order XL, Rule 4. Enforcement of receiver's duties, -- Where a receiver -

(a) fails to submit his account at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or

(c) occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.'

The Court has been empowered under this provision to direct attachment and sale of the receiver's property if it comes to the conclusion that the receiver has committed any of the defaults mentioned in Clauses (a), (b) and (c) of the said rule. It is true that in the application filed by the petitioner an allegation has been made against the receiver that the latter was guilty of wilful default and gross negligence in not having filed the suits against the debtors of the firm and for having allowed the debts to become time barred and thus having occasioned loss to the parties. But there is no prayer in the application that for making good the loss the receiver's property may be attached and sold. All that has been prayed in the application is that the receiver may be called upon to pay the amount to the plaintiff on account of the loss occasioned to the latter. The court came to the conclusion that the receiver was not guilty of any wilful default or negligence and, therefore, he was held not liable for pay-ment of any amount to the plaintiff. The operative part of the Rule set out above dearly goes to show that a direction for attachment and sale of the receiver's property is contemplated by this rule. The learned counsel for the non-petitioners contends that an appeal would lie even though the prayer for attachment and sale of the property is refused and in support of his submission the learned counsel has relied on Virappa Mallappa v. K. S. Deshnande, AIR 1963 Mys 173. That authority, no doubt, supports the contention urged on behalf of the non-petitioner in this respect, though it is not clear from the facts stated in the judgment whether there was any prayer in the application for attachment and sale of the receiver's property. The learned Judge was however of the opinion that if the application properly falls under Order 40, Rule 4 C. P. C. and has been refused, an appeal would nevertheless lie as provided under Order 43, Rule 1 (S), C. P. C.

The question--whether an appeal would lie even though no prayer for attachment and sale of the receiver's property is asked for?--has not been dealt with in this judgment. In this connection I may refer to R. M. P. Palaniappa Chetti v. M. S. A. P. L. Palanippa Chetty, AIR 1922 Mad 234 wherein it has been observed that the plain language of the rule (Order 40, Rule 4) shows that the Receiver's right of appeal arises only on an order of attachment being passed by the lower Court. In that case the subordinate judge had given directions to the Receiver to pay a certain sum of money into the court and an appeal was filed against the order of the subordinate judge. On a preliminary objection having been raised as to maintainability of the appeal, the learned Judges held that the order was not appealable for the simple reason that no order for the attachment of the Receiver's property and realisation of money by means of such attachment had been passed by the lower Court as contemplated by Order 40, Rule 4 C. P. C. The same view was taken in a later decision of the Madras High Court in P. Kriishnamurthy v. P. Rama-lingayya, AIR 1954 Mad 535. The view taken by the learned Judges of the Madras High Court, with utmost respect, appears to be correct. This view is supported not only by the plain language of the rule in question, but also by a few earlier decisions of Calcutta and Patna High Courts. It was held by the Calcutta Hign Court under the old Civil Procedure Code that directions given by a Court in passing the Receiver's accounts are not appealable (Vide: Keshobati Kumari v. Macgregor, (1908) ILR 35 Cal 568 = 12 Cal WN 648 see also Mohini Mohan Patra v. Barada Kanta Sirkar, (1911) 14 Cal LJ 445 = 12 Ind Cas 780). The same view was taken by the Patna High Court also in Ganeshlal v. Satva Narayan Singh, 4 Pat LJ 636 = (AIR 1920 Pat 220) and Samhantta Singh v. Bhagwati Singh, 5 Pat LJ 97 = (AIR 1920 Pat 703). I may also refer to a Bench decision of the Rangoon High Court in L. A. R. Arunachellam Chettiar v. U Po Lu, AIR 1925 Rang 266. It was held by the learned Judges of the Rangoon High Court that an order directing a Receiver to pay a sum of money by way of damages is not appealable as it does not come within the operative part of Rule 4.

Shri Rastogi, learned counsel for the non-petitioners, has submitted that when a default is alleged under any of the Sub-rules (a), (h) or (c) of Rule 4 of Order 40, and an order is passed by the Court in respect of it, irrespective of the question, whether an order for attachment of the Receiver's property is passed or not, appeal would lie from such an order. I find myself, however, unable to accept this submission. The operative part of Rule 4 is the part which enables the Court to attach the Receiver's property and sell it and Clauses (a), (b) and (c) give only the grounds on which such an order can be made. All that can be said, therefore, in the present case is that the petitioner had alleged in his application one of the grounds contained in the Order 40, Rule 4, viz. ground (c) and thus asserted that loss had been occasioned to the firm's property by negligence of the receiver. There is, however, no prayer for attachment of the Receiver's property. It is, therefore, idle to argue that an appeal, would lie even though no prayer much less an order for attachment of the Receiver's property was made as contemplated by the operative part of the Rule. Thus, so far as this case is concerned, apart from the fact, that no order has been passed under the operative part of the rule for attachment and sale of the Receiver's property even a prayer for attachment and sale of the receiver's property has not been made. Thus, no order, as contemplated by Order 40, Rule 4 C. P. C. can be said to have been passed by the lower court in this case and, therefore, it cannot be said that the order under revision is appealable under Order 43, Rule 1 (S) C. P. C. In these circumstances, I do not see any force in the preliminary objection and hereby overrule it.

3. Coming to the merits of the case, the question is has the lower court committed any error in exercise of its jurisdiction The learned Munsif has held and doubtless correctly, that the allegations made by the plaintiff in his application dated 17-5-63, are vague. The only material allegation contained in the application is that the Receiver did not look into the papers in time and did not file suits against some debtors with the result that the claims to the tune of Rs. 20,000/- became time barred. No details of the debtors have been given nor it has been mentioned, which debts had become time barred and when. No particulars of wilful default or negligence on the part of the Receiver have been mentioned. Even in his statement, the plaintiff has not been able to supply any material in this connection and the learned Munsif is right in his observation that on the material as it stood it was not possible for any court to come to the conclusion that the Receiver had committed any wilful default or negligence. There does not appear any ground to take a different view of the matter from the one taken by the learned Munsif. 1 am informed that the suit has been disposed of and the matter is not pending before the trial court in any form. In these circumstances no useful purpose would be served by giving directions to the learned Munsif for making a further probe into the matter.

4. This revision thus has no force and is hereby dismissed. In the circumstances of the case I leave the parties to bear their wn costs.


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