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Sm. Bhuban Mohini Debi and anr. Vs. Biraj Mohan Ghosh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal1
AppellantSm. Bhuban Mohini Debi and anr.
RespondentBiraj Mohan Ghosh
Cases ReferredIn Revati Mohan Das v. Jatindra Mohan
Excerpt:
- .....was sought. in their lordships' opinion such a suit is not within the ambit of section 80, and no notice of suit was required.9. there is no authority that i am aware of which holds 'that notice under section 80 is necessary where the relief is sought against the estate itself, in the hands of the receiver' or the common manager. it may be mentioned here that no notice under section 80 is necessary in suits against the official trustee or the administrator-general except when these officers are sought to be made personally liable : vide section 16, act 2 of 1913 and section 41 of act 3 of 1913. it is true that this is because of express statutory provisions, which have made exceptions, so to say, to the general rule contained in section 80, civil p.c. but we think that a receiver.....
Judgment:

1. This appeal is on behalf of the plaintiffs and the suit was one commenced by them for establishment of their title to the lands in suit and for recovery of khas possession on evicting defendant 1. There was a claim for mesne profits against both the defendants and an alternative claim for rent in case defendant 1 succeeded in establishing his tenancy right to the disputed land. The plaintiffs' case was that the lands in suit appertained to the secular estate of one Rajmohan Nag Choudhury which vested in the predecessor of the plaintiffs under a sale in execution of a mortgage decree. Defendant 1 was a tenant in occupation of the said lands, but in a rent suit which was instituted against him by the plaintiffs he denied their title and set up a tenancy right under the debuttar estate of Raj Mohan Nag Choudhury which admittedly did not pass to the plaintiffs' predecessor by the mortgage sale and which is now in possession of defendant 2 as a receiver appointed by the Court.

2. This plea was given effect by the Court which decided the rent suit and the plaintiffs' claim for rent was dismissed. The plaintiffs have now commenced this suit for recovery of khas possession of the lands on the footing that defendant 1 is a trespasser. It was alleged that certain rent receipts were produced by defendant 1 in the rent suit in collusion with defendant 2 for the purpose of proving the title of the debutter estate, and in fact the latter was all along asserting its right to realize rents from defendant 1. On these allegations the plaintiffs wanted mesne profits against both the defendants and in case it was found that defendant 1 was a tenant, and had paid rents to the debutter estate, there was an alternative prayer for recovery of the sums realized as rents from defendant 2. Both the defendants contested the suit. Their contention in substance was that the lands in suit appertained to the debutter estate and the plaintiffs had no right or title to the same. It was said that the decision in the rent suit was quite correct, and that defendant 1 had as a matter of fact, paid rents to the debutter estate up to 1340 B.S. Defendant 2 raised a further point that the suit was not maintainable against him without a notice under Section 80, Civil P.C. The trial Court oh a consideration of the evidence in the record came to the conclusion that the plaintiff had no title to the lands in suit, which were in reality a part of the debutter estate of Raj Mohan Nag Choudhury. On this finding, the suit was dismissed, and the Munsif did not go into the other questions raised in the issues, including the question of notice under Section 80, Civil P.C. There was an appeal taken by the plaintiffs, against this decision, and the Additional District Judge of Alipur who heard the appeal reversed the finding of the Munsif on the question of title and' came to the conclusion that the property in suit was included in the secular estates of Raj Mohan and hence passed by the mortgage sale to the plaintiffs' predecessor. As the trial Court had not decided the issue raised on the question of notice under Section 80, Civil P.C. the case was sent back to the trial Judge for re-hearing on the point. The Munsif, after remand decided this issue-against the plaintiffs and held that the suit, was not maintainable against defendant 2r as no notice was served upon him under Section 80, Civil P.C. This view was affirmed; in appeal by the Additional District Judge, 24-Parganas. The result was that the suit was dismissed against defendant 2. It was disposed of as against defendant 1 on the terms of a compromise entered into between him and the plaintiffs. It is against the order of dismissal against defendant 2 that the plaintiffs have come up on second appeal to this Court.

3. Dr. Bysack appearing in support of the. appeal has contended in the first place that a receiver is not a public officer and consequently no notice under Section 80, Civil P.C. is necessary. This contention is opposed to a number of authorities of this Court where it has been held that a receiver is a public officer and is entitled to a notice under I Section 80, Civil P.C. It cannot be disputed that it is the duty of a receiver to take, charge of the properties in suit on behalf of the Court. He exercises his functions under the supervision and control of the Court and is remunerated under its orders. He can thus be deemed to be an officer of a Court of justice whose duty it is to take charge or dispose of any property within the meaning of Section 2(17)(d), Civil P.C. Even if he is not an 'officer' he is clearly a person especially authorized by a Court of justice to perform such duties, as laid down in that clause. The case in Jagadsh Chandra Deo v. Debendra Prasad Bahadur : AIR1931Cal503 is a direct authority on the point, that a receiver is a public officer. The learned Judges who decided this case observed in their judgment that there were several earlier decisions in which the same view was taken. It is true, as has been pointed out by Dr. Bysack, that most of the earlier cases were really cases of a common manager and not of a receiver appointed under the provision of the Civil Procedure Code : vide Bani Madhab v. Deb Narayan (1920) 7 A.I.R. Cal. 575 and Naba Kishore Mandal v. Atul Chandra Chatterjee (1913) 40 Cal. 150. In fact the earliest reported authority on the question of a receiver being a public officer is to be found in Radharani Dasya v. Purna Chandra Sarkar : AIR1930Cal737 . This was an application for leave to appeal to His Majesty in Council against a judgment of Page and Patterson, JJ. passed in Radha Rani Dasya v. Purna Chandra Sarker Reported in : AIR1930Cal721 . The suit out of which the appeal arose was one instituted against an ex-receiver for recovery of money alleged to have been misappropriated by the latter. The Court below dismissed the suit on the ground of an absence of notice under Section 80, Civil P.C. and this Court affirmed that decision.

4. In support of the application for leave to appeal to His Majesty in Council a point was raised that even though a notice might be necessary when the receiver was still in office, there could be no such necessity after he was discharged. It was held by Rankin, C.J. sitting with C.C. Ghosh, J. that that was not a reasonable construction to be put upon Section 80 read with Section 2(17), Civil P.C.; and this being not a substantial question of law, leave to appeal to His Majesty in Council was refused. It may be pointed out that in this case Page and Patterson, JJ. relied on the earlier cases relating to a common manager as authorities in support of the proposition that a receiver was a public officer, and this view has not been dissented from since then. The question as to whether a common manager was a public officer was raised in Revati Mohan Das v. Jatindra Mohan , but their Lordships of the Judicial Committee left the question undecided, and disposed of the case on the other ground that the suit was not one in respect of any act or omission on the part of the common manager, assuming that he was a public officer within the meaning of Section 80, Civil P.C. Dr. Bysack has laid much stress on certain observations made by Costello J. in Purna Chandra v. Radharani Dasya : AIR1931Cal175 . The learned Judge indeed observed in his judgment in this case, that he was startled to hear it argued that receivers must be treated as public officers within the meaning of 'Section 80, Civil P.C. But even then there was no decision on this point, and the learned Judges based their judgment on the ground that as no objection on the score of want of notice was raised by the defendant in proper time he could not raise it afterwards. It may be that the question still awaits final determination by the Judicial Committe, but in view of the authorities mentioned above and the provision of Section 2(17)(d), Civil P.C. we do not think that we would be justified in holding that a receiver is not a public officer.

5. The next question for our determination is, whether assuming that a receiver is a public officer, a notice under Section 80, Civil P.C. was necessary in the circumstances of the present case. Dr. Bysack argues that a notice may have been necessary with regard to the claims for mesne profits or compensation made by the plaintiff in their plaint, but so far as declaration of title to the disputed property is concerned, the plaintiffs' cause of, action is not based on anything done or omitted to be done by the receiver. The receiver was made a party simply because defendant 1 set up the title of the debutter estate, and it was proper that the question should be decided in the presence of the receiver. Under these circumstances the contention of the learned advocate is that the Courts below should have given his clients a declaration of title to the land in suit against defendant 2 though the claim for mesne profits might be dismissed. In fact his clients made an application before the Court of Appeal below withdrawing their claims for compensation and mesne profits against the receiver.

6. It is quite true that if two or more causes of action are united in one suit, and with regard to one of them the suit fails for want of notice under Section 80, Civil P.C., there is no reason why the entire suit should be dismissed : vide Dakshina Ranjan Ghosh v. Omar Chand : AIR1924Cal145 . But this contention by itself is of no assistance to Dr. Bysack's clients. If the suit is really a suit against the receiver within the meaning of Section 80, Civil P.C. the cause of action of the plaintiffs even as regards declaration of title, is clearly based on certain specific acts alleged to have been committed by the receiver. In para. 9 of the plaint there are definite allegations against him of collusion with defendant 1 in granting rent receipts, and setting up a claim to possession in the disputed property. The receiver moreover did not take up a neutral attitude, and the defence of both the defendants in answer to the plaintiffs' claim is identically the same. Such being the case, it is not possible in our opinion to sever one part of the case from the other. This contention of Dr. Bysaek therefore must fail. But we think that quite apart from these contentions the appellants are entitled to succeed on another and a broader ground, viz., that the present suit is really not one against the receiver as a public officer as is contemplated by Section 80, Civil P.C. As was observed by the Judicial Committee in Bhagchand Dagadusa v. Secy. of State , Section 80 was intended 'to afford protection to officials against personal responsibility for official acts.' If it is sought to make an officer personally liable for certain acts done or purporting to be done by him in his official capacity, it is essential before a suit is commenced that there should be a notice served upon him under Section 80, Civil P.C. The object of the notice is to give him an opportunity to reconsider his position with regard to the claim and to make amends, or settle the claim if he is so advised.

7. The suit in the present case is not against the receiver as such; it is really a suit against the debutter estate. The plaintiffs' cause of action is that the debutter estate, which is now in the hands of the receiver under orders of the Court, has dispossessed them from the land in suit, through defendant 1 who is a tenant of theirs. The plaintiffs want to have their title to the disputed property established against the debutter estate, and it is from the debutter estate that they want to recover mesne profits. In short the plaintiffs do not pray for anything against the receiver personally. They want a decision which would be binding on the debutter estate. If the receiver is discharged today, the suit would then proceed against the debutter estate and those who own it. It is well settled that no estate vests in the receiver by virtue of his appointment. He collects rents or profits, income or capital on the title of the persons who are parties to the suit, and he defends the suit, because of the powers given to him by the Court under Order 40, Rule 1(d), Civil P.C. I think that in such. cases when no relief is claimed against the receiver personally, and the suit is really against the estate, which does not vest in the receiver, but which is held by him under orders of the Court who made the appointment, the suit cannot be said to be one against the receiver within the meaning of Section 80, Civil P.C. In other words, Section 80, Civil P.C. contemplates in my opinion a suit against the receiver which seeks to make him personally liable for acts, done or purporting to be done by him in his official capacity, and it does not contemplate a case where a suit for possession is brought against the owners of the estate in the respect of which he has been appointed a receiver, and which suit he has got to defend under powers conferred on him by the Court. In. such cases it is undoubtedly necessary to take the leave of the Court which appointed the receiver, before the latter can be made a party to the proceedings, and that is on the principle that interference with the possession of the receiver, without leave would amount to a contempt of the Court, whose officer the receiver is. But there, is in my opinion no necessity to serve upon him a notice under Section 80, and there can be no meaning in sending such notice. It would not be in the powers of the receiver to make amends of his own accord. If any reparation is to be done that can only be done by the persons who actually own the estate. If the receiver proceeds to satisfy the claims of the plaintiffs on his own responsibility he may himself be made, liable at the instance of the persons who have got the title.

8. It is to be noticed that all the authorities mentioned above, with the exception of the one in Revati Mohan Das v. Jatindra Mohan which was decided by the Judicial Committee, are cases where the receiver was sought. to be made personally liable for acts purporting to be done by him as a public officer, and hence, it could properly be said that notice under Section 80, Civil P.C. was necessary in these cases. In Revati Mohan Das v. Jatindra Mohan the suit was one to enforce a charge upon properties in the hands of a common manager and not to make him personally liable. As the suit was not in respect of any act of omission on the part of the common manager it was held by the Judicial Committee that no notice was necessary. There is an important passage in the judgment of their Lordships which in our opinion clearly indicates that a suit which was not against the common manager personally would not in their Lordships', opinion come under Section 80, Civil P.C. 'The appellant made no claim against respondent 1 personally' so runs the judgment:

He was there only as representing the estate of which the sale was sought. In their Lordships' opinion such a suit is not within the ambit of Section 80, and no notice of suit was required.

9. There is no authority that I am aware of which holds 'that notice under Section 80 is necessary where the relief is sought against the estate itself, in the hands of the receiver' or the common manager. It may be mentioned here that no notice under Section 80 is necessary in suits against the Official Trustee or the Administrator-General except when these officers are sought to be made personally liable : vide Section 16, Act 2 of 1913 and Section 41 of Act 3 of 1913. It is true that this is because of express statutory provisions, which have made exceptions, so to say, to the general rule contained in Section 80, Civil P.C. But we think that a receiver appointed by the Court under Order 40, Rule 1, Civil P.C. has a legal position different from that of the Official Trustee or the Administrator-General. Unlike the receiver, these officers have an estate in the properties which they hold by virtue of their office and consequently a suit in respect of the properties they hold, would be a suit against them in the legal sense. The same reasoning does not apply to a receiver. My conclusion therefore is that the suit in the present case was not against the receiver as contemplated by Section 80, Civil P.C. and as such no notice was necessary. The result is that the appeal is allowed and the judgment and decree of the Court below are set aside.

10. The plaintiffs, having according to the findings of Court of Appeal below established their title to the property in suit, are entitled to a declaration of their title as against defendant 2. As against defendant 1, the suit would be decreed in terms of the compromise entered into between him and the plaintiffs. The plaintiffs' claim for mesne profits or compensation against defendant 2 would stand dismissed. The costs will be borne by the parties themselves in all the Courts. The cross-objections are dismissed with no order as to costs.


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