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BipIn Behari Bose and ors. Vs. Mr. K.S. Bonnerjee and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.104
AppellantBipIn Behari Bose and ors.
RespondentMr. K.S. Bonnerjee And; Late Kumudini Dasi and ors.
Cases ReferredRai Charan Mandal v. Biswanath Mandal
Excerpt:
receiver, suit by - conditional discharge--condition not fulfilled--discharge, whether complete--decree, subsequent, in favour of receiver, validity of--discharge of receiver--devolution of interest. - john woodroffe, j.1. this appeal arises out of a suit for a declaration that a certain rent-decree dated the 13th february 1919, obtained by the defendant as receiver against the, plaintiffs is invalid and inoperative. the defendant was appointed receiver of the estate of kumudini dasi, one of the widows of gopal lal seal, on the 7th january 1918. the defendant instituted a rent suit as receiver. it is alleged that during the pendency of that suit, he was discharged as receiver and thus unable to maintain and continue the suit, and that such discharge took place on the 28th january 1919. he was not, it is said, reinstated until the 17th february 1919, and that the decree passed in the rent-suit on the 13th february 1919 in favour of the receiver is invalid. it is alleged that the receiver.....
Judgment:

John Woodroffe, J.

1. This appeal arises out of a suit for a declaration that a certain rent-decree dated the 13th February 1919, obtained by the defendant as Receiver against the, plaintiffs is invalid and inoperative. The defendant was appointed Receiver of the estate of Kumudini Dasi, one of the widows of Gopal Lal Seal, on the 7th January 1918. The defendant instituted a rent suit as Receiver. It is alleged that during the pendency of that suit, he was discharged as Receiver and thus unable to maintain and continue the suit, and that such discharge took place on the 28th January 1919. He was not, it is said, reinstated until the 17th February 1919, and that the decree passed in the rent-suit on the 13th February 1919 in favour of the Receiver is invalid. It is alleged that the Receiver purposely withheld this information from the Court, namely, that he was discharged, and thus induced the Court to believe that he was Receiver and he thus obtained a decree in his favour. It is said that the decree was secured by suppression of material facts and thus it was inoperative entitling the appellants to bring this suit to have it set aside. As I said, the Receiver is said to have been discharged on the 28th January 1919. On that date a settlement was arrived at in the suit of Gour Mohun Mullick v. Noyan Manjuri Dassi. In the 8th paragraph of that settlement it is stated 'that the Official Receiver in this suit do forthwith make over possession of the estate in his hands to the Mullick parties with like notice as aforesaid except a pair of horses and an office Jaun which he is to make over to Babu Panna Lal Seal and that he be discharged and do pass his accounts.'

2. This order is, it has been contended, a conditional order, because in the earlier portion of the order of the High Court discharging the Receiver it appears that the Counsel for the parties other than Srimati Noyan Manjuri Dasi undertaking that their respective clients shall produce to the Registrar of this Court affidavits from their respective wives stating that so long as this decree remains unreversed they will make no claim to the monthly sums referred to in Clause 10 of the terms of settlement hereinafter referred to.

3. There is no evidence before us, as the learned Judge has pointed out, which shows that this undertaking was carried out. We then find that there was an appeal, and on the 17th February 1919, an order was passed by the Appellate Court directing that the Receiver should retain possession of the share of Srimati Kumudini Dasi until the final determination of that appeal. The decree of the 28th January 1919 to which I have referred was not signed by the learned Judge until the 25th February. The decree was passed in the appeal in the High Court on the 4th April 1919, and after the date of the Appellate Court's decree on the 17th March 1920, an order was passed by this Court on the Original Side by which it was ordered that the Receiver of this Court and the Receiver appointed in this suit under the said order dated the second day of January one thousand nine hundred and eighteen of the estate of Gopal Lal Seal deceased, which was held by Srimati Kumudini Dasi deceased, and now in his possession do continue to act as such Receiver as aforesaid with all the powers conferred upon him by the said order from the said 4th day of April 1919 until further orders of this Court.

4. As I have mentioned the decree in the rent-suit instituted by the Receiver was passed on the 13th February 1919, that is, after the date of the High Court's order of discharge on the 28th January 1919 but before that decree had been signed by the learned Judge who passed it on the 25ft February 1919.

5. It appears from the order-sheet, order No. 141 dated the 13th February 1919, that the plaintiff was ready with his witnesses. But the defendant asked for time on the ground that his servant who looked after this case was ill. The Judge then recorded the following order: 'I am not satisfied as to the truth of the plea. It appears from an examination of this record that the defendant has obtained adjournments on this very, plea which goes to show that the plea is a mere pretext to delay the decision of this case. The suit is one for rent, and already more than nine months have elapsed of which seven months have elapsed after the defendant had entered appearance. So I refuse to grant the defendant's application.' Then on the same date the following two orders were passed: 'After the disposal of the above application, the defendant's Pleader stated that he was going to make an application stating that the plaintiff was discharged from the Receivership in which capacity he sued. As, there is nothing on the record to prove the correctness of this statement of the defendant's Pleader, I refuse to take cognizance of it. The defendant's Pleader thus retired.' The next order is: 'In the course of the examination of the plaintiff's, witness, Tarak Chandra Mitra, the defendant's Pleader filed the application stating that the plaintiff was discharged and asked for a week's time to prove this fact. I refuse to admit this application and to grant the time applied for.'

6. Passing now to the law on these facts it is in the first place urged that when the suit was first instituted, there was no defect in the title, on the contrary the Receiver had full authority to institute the suit, the decree in which the appellant seeks to set aside. Assuming for the, moment, without deciding that the appellant's contention is correct, namely, that the Receiver ceased to be such before the date of the decree, that is, on the 28th January 1919, the decree being signed on the 25th February 1919, there is in this case a devolution of interest. See the case of Macleod v. Kissan Vithal Singh 30 B. 250 : 6 Bom. L.R. 995. But because there was such devolution it does not follow therefrom that the suit should have, been arrested, that it could no longer be maintained and that the decree which was passed in favour of the plaintiff was, as I alleged, a bad decree [see the case: of Rai Charan Mandal v. Biswanath Mandal 26 Ind. Cas. 410 : 20 C.L.J. 107. If the party on whom the interest devolved did not apply (as they did not), to carry on the proceedings, then in such a case the decree would enure for the benefit of the party. We must distinguish such a case from one in which an event subsequent to suit shows that the plaintiff had no title to bring that suit on the date of its institution. This argument, however, as I say, assumes that the Receiver was discharged before the decree, but the learned Judge holds that he was not discharged; and I am not satisfied that the learned Judge's decision on this point is erroneous. The decree of the 28th January 1919 was, it has been pointed out, conditional on certain affidavits to which I have referred being filed, as also, it is contended, to the giving over of possession in terms of Clause 8 of the terms of settlement. There is nothing to show that these conditions were carried out and it is for the plaintiff-appellant, in my opinion, to show all the facts which are necessary for him to establish in order to prove his claim to have the, decree set aside. Not only is there nothing to show that these conditions have been carried out but on the contrary we find that the order of the Appellate Court of the 17th February 1919, orders that the Receiver do retain possession during the pendency of the appeal, thereby indicating that the Receiver had been and was then in possession or, in other words, that the order of the 2Ith. January 1919 had not on that date been carried out. Further, the decree, dated the 28th January 1919, was not signed until the 25th February 1919. The decree was not complete and was inoperative for want of signature. Then on the 17th March 1920, the Receiver was continued after disposal of the appeal and it is to be observed, as the learned Judge has done, that no reference is here made to any fresh appointment, the date referred to in the order dated the 17th March 1920, passed by Mr. Justice Greaves being the 2nd January when the Receiver was first appointed. I am of opinion, therefore, that it has not been established that the Receiver was in fact and law discharged on the date of the rent-decree, that is the 13th February 1919, nor am I satisfied that it is proved that there was fraud such as would entitle the plaintiff to maintain the suit to have the decree set aside. Having regard to my findings on the other points it is not necessary for me to elaborate this one, but I desire to say that it is not suggested that the Receiver had any intention to deceive.

7. It is, however, contended that it was the duty of the Receiver to state to the Court that he was discharged. It has not been made clear either to us or to the Subordinate Judge that there was in fact and in law such a discharge as, it is said, it was incumbent upon the Receiver to disclose before the Court. On the question of alleged damages for such alleged fraud it is to be observed, having regard to the provisions of Section 153(a) of the Bengal Tenancy Act, that the Judge passed the following order: 'The defendants made an application for re-hearing on the 14th March. By an order dated the 14th March (recorded on the application) they were asked to state within three days if any rent was due from them for the period in claim. They have not answered this question. From their application for re-hearing it does not appear that they have sustained any injury by the ex parte decree. So I refuse to admit for re-hearing. It is rejected accordingly.'

8. For the reasons stated I am of opinion that this appeal fails and must be dismissed with costs.

Ghose, J.

9. I agree.


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