1. Patni Taluk Dihi Moureswar in the district of Birbhum belongs to 20 persons who are described as respondents 2 to 21 in the memorandum of appeal to this Court printed at p. 56, Part 1 of the paper-book. The patnidar had given a usufructuary mortgage to one Bibhuti Bhusan Das who is respondent' 1 in this Court. Bibhuti Bhusan Das held a tenure under the patni. He paid patni rent on previous occasions and was put in possession of the patni as girbidar. He is respondent 1 in this appeal. The Maharaja of Burdwan, who was the zamindar, instituted a suit for recovery of arrears of rent for the years 1339 to 1342 B.S. on 15th April 1986. The said rent suit was numbered as 22 of that year. In the rent suit he not only made the patnidars defendants but also Girbidar Bibhuti Bhusan Das. He recovered a rent decree on 17th July 1938 for a sum of Rs. 27,000 odd. He put that decree into execution and the patni was sold and purchased by him at the court sale on 22nd August 1941. There were various other proceedings taken by the judgment-debtors for the purposes of delaying execution. Those proceedings are detailed at pp. 47 to 51 of Part 1 of the paper-book of this appeal. It is unnecessary at this stage to refer to those proceedings in detail which are mentioned at pp. 48 to 51 of Part 1 of the paper-book. On 19th September 1941 an application to set aside the said sale was filed by some of the judgment-debtors. That application was headed as an application under Order 21, Rule 90, Civil P. C., and not under Section 174, Bengal Tenancy Act, with an ulterior object. That application has not been disposed of. The hearing of that application has been delayed by objections of various sorts raised by the judgment-debtors under Section 47, Civil P. C. This application to set aside the sale has been numbered as Misc. Judicial Case No. 109 of 1941. In the miscellaneous judicial case, the decree-holder purchaser, namely, the Maharaja of Burdwan, filed an application for the appointment of a receiver under Order 40, Rule 1, Civil P. C., on 8th July 1942. It was opposed by the judgment-debtors. The learned Subordinate Judge by his Order No. 90, dated 12th November 1942, has refused this application. In his order he does not consider the merits but on a construction of Sub-rule (2), Order 40, Rule 1, he has come to the conclusion that he had no power in law to appoint a receiver, for the effect of the appointment of a receiver would be to remove one of the judgment-debtors, namely, Bibhuti Bhusan Das from possession. It is against this order that the present appeal has been preferred by the Maharaja of Burdwan.
2. We may at once say that the learned Subordinate Judge's view of Sub-rule (2) of Order 40, Rule 1, Civil P. C., is not correct. Rule 1 of Order 40 defines power of the Court to appoint a receiver. It says that the Court can appoint a receiver whenever it considers just and convenient. Those powers are very wide. It can also remove any person from possession and commit the same to the poseession, custody or management of the receiver and confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits and the execution of documents, etc. Sub-rule 2 says:
Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.
The learned Subordinate Judge's reasoning is as follows: That title of the auction-purchaser, the Maharaja of Burdwan, would not accrue till the confirmation of sale at which he purchased, and by reason of the provisions of Section 159, Bengal Tenancy Act, his title to the patni would commence from the date of the confirmation of sale and not from the date of the sale which would have been the case if the sale had been under the Civil Procedure Code, and as that sale has not been confirmed the position of the Maharaja of Burdwan was now that of a mere landlord of the patni. He is not the owner of the patni and therefore he cannot get possession of the patni. Inasmuch as he cannot get possession of the patni before the confirmation of the sale, he has not the present right to remove Bibhuti Bhusan Das from the property. This line of reasoning assumes that Sub-rule (2) contemplates not only the removal of a person from possession of the property who is not a party to the suit but also the removal of a person in possession who is a party to the suit. This view of the learned Subordinate Judge finds support from the judgment of the Full Bench of the Allahabad High Court in Ram Swarup v. Anandi Lal. : AIR1936All495 . But with great respect to the learned Judges of that Court, we dissent from the view taken therein. In our view Sub-rule (2) of Rule 1 of Order 40 covers only the case of removal of a person from possession who is not a party to the suit. That follows from the construction of that Sub-rule (1) (b) gives the Court the power to remove any person from possession. Sub-rule (2) is a limitation on the power of the Court thus defined in Sub-rule (1) (b) of that order. It is an exception, so its effect must be taken to be the normal effect of a provision which is in the nature of a proviso or exception, that is to say it limits the operation of the main provision but does not totally destroy it. The construction put by the Allahabad High Court in the aforesaid Full Bench decision would have the effect of almost nullifying el. (b) of Sub-rule (1) of Order 40 Rule 1. If that construction be adopted, the power to appoint a receiver would be limited only to extremely rare cases where the property is in the possession of nobody that is lying in media. Even partition suits would be excluded. The words of the sub-rule also indicate that that rule takes away the power from this Court to remove from possession a person other than a party to the suit, for the language used is, 'from the possession or custody of property any person whom any party to the suit has not a present right so to remove.' This means that a person in possession cannot be removed whom none of the parties to the suit had the present right to remove. The distinction is made in the rule itself between a person to the suit and a person who is not a party to the suit. The view that we are taking of Sub-rule (2), Rule 1 of Order 40 finds support from the decision of all the other High Courts and even from some earlier decisions of the Allahabad High Court itself. Those decisions are noted at the foot-note to para. 49 of Chitaley and Rao's Commentaries on the Code of Civil Procedure, vol. III, p. 2924. The view, therefore, of the learned Subordinate Judge is incorrect.
3. Bibhuti Bhusan Das, the person in possession of the putni, was a party to the rent suit. He is a judgment-debtor and he is a party to the proceedings for setting aside the sale. The reason given by the learned Subordinate Judge being wrong, it is necessary to consider if there is any bar to the appointment of a receiver under any other provision of the law. We have been referred to Section 168A, Ben. Ten. Act, by Mr. Mukherjee and his contention is that in view of the provisions of that section a receiver cannot be appointed while an application to set aside the sale held under the provisions of chap. 14, Ben. Ten. Act, is pending. We do not consider that to be the effect of that provision. A construction of that section would be relevant only if at a later stage after the disposal of the application to set aside the sale, claims are preferred to the money that would be collected by the receiver appointed in respect of the patni. There being thus no legal bar to the appointment of a receiver, the question is whether it is a fit case on the facts that a receiver should be appointed. At pp. 47 to 52 of Part I of the paper-book in the application for the appointment of a receiver a number of facts have been stated on affidavit by the decree-holder's officer. Those facts have not been controverted by the other side and cannot be controverted by them. They show that since the year 1336 B.S., the patnidars have not been paying rent to the Maharaja of Burdwan and the arrears of patni rent would by this time be more than fifty thousand rupees, that the patnidars have all along been enjoying the rents and profits of the patni without discharging their liabilities to the Maharaja of Burdwan and for the purpose of delaying and defeating execution they have instituted or caused to be instituted a number of suits and proceedings. The statements contained in those paragraphs of the application for the receivership make it quite clear that this is a fit and proper case in which a receiver should be appointed.
4. Mr. Surendra Kumar Basu, the general manager of the Maharaja of Burdwan is willing to accept the receivership. We accordingly appoint him receiver of the patni without remuneration. He is to furnish security to the extent of five thousand rupees to the satisfaction of the lower Court. He is to furnish six-monthly accounts and would act under the directions of the lower Court. Whatever moneys he would collect, he would deposit in Court after paying thereout the revenue and cesses of the touzi payable in the share of the Maharaja of Burdwan. The balance would be kept in deposit in Court, that is to say, he is not to pay anything to the judgment-debtors or to the Maharaja of Burdwan on account of the rent due for the patni. After the disposal of the application for setting aside the sale, the learned Subordinate Judge would on a proper application being made consider such questions as may be raised and order payment of the amount that may be lying in deposit in his Court to the party entitled to the same. He would also decide the question as to which party was under the liability to pay the revenue and cesses which we have directed the receiver to pay from the collections on behalf of the Maharaja. In deciding those questions he would keep in view the provisions of Section 168A, Ben. Ten. Act, and the terms of engagement between the zamindar, the Maharaja of Burdwan and patnidars and make necessary orders. Let the record be sent down to the lower Court without delay with a request to the lower Court to issue the writ to the receiver. As soon as the security is furnished by him, the lower Court would direct forthwith the patnidars and Girbidar Bibhuti Bhusan Das to put the receiver in possession and to hand over to him all the collection papers of the patni from the year 1336 B. S. up to date. If the Court's order be disobeyed or if the patnidars or Girbidar Bibhuti Bhusan Das adopt delaying tactics in the matter of putting the receiver in possession of the property or in possession of the collection papers, the Court would take appropriate proceedings against him or them. This appeal is accordingly allowed. The appellant will have costs from the appearing respondents, hearing fee being assessed at thirty gold mohurs. As we have appointed a receiver in the appeal, no order is necessary in the rule.