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Mano Mohan Neogy Vs. Surendra Kumar Ray Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal52
AppellantMano Mohan Neogy
RespondentSurendra Kumar Ray Chowdhury and ors.
Cases ReferredSripati v. Bibhuti Bhusan
Excerpt:
- .....learned advocate for defendants 5 to 21, respondents, that inasmuch as none of the parties to the suit had appealed, the order of removal of one of the joint receivers could not be challenged by the receiver so removed; the receiver himself had no right of appeal under the law, from the order as it stood. it has been strenuously contended on behalf of the appellant, that the preliminary objection directed against the maintainability of the appeal, could not be given effect to; it was urged that none of the grounds upon which the objection was formulated was sustainable in law. the first question that requires consideration is whether the order of removal of a receiver was appealable as such, irrespective of the position whether the receiver has the right to appeal against any order made.....
Judgment:

Guha, J.

1. The plaintiffs-respondents in this appeal instituted a suit in the first Court of the Subordinate Judge at Dacca, Suit No. 263 of 1924, for dissolution of partnership and for accounts, for partition of immovable properties, as also for ancillary and incidental reliefs. There was a prayer for appointment of a receiver in the suit. A preliminary decree was passed in the suit, and two persons were appointed joint receivers, by an order dated 3rd September 1928. The receivers so appointed took possession of the properties in suit, and were in charge of the management of the same. On 15th May 1931, defendants 5 to 21 made an application for the removal of the joint receivers appointed by the Court, and for the appointment of a competent and efficient receiver or manager, on a modest scale of remuneration or on a fixed salary, so as to reduce the cost of management, and effect economy. It appears that the pleaders appearing on behalf of the plaintiffs and defendants, other than defendants 5 to 21 the applicants for removal of the joint receivers, stated before the Court below that their clients had no objection to any curtailment of costs if that could be effected without impairing efficiency in the management of the properties. The parties to the suit represented by their pleaders were heard by the learned Subordinate Judge in the matter of the removal of receivers, and on 14th September 1931, an order was passed directing that Babu Ban Behari Saha, one of the joint receivers, do provisionally work as the sole receiver from October 1931, and that the other receiver Rai Manmohan Neogy Bahadur be removed. The receiver so removed by the order of the learned Subordinate Judge has appealed to this Court.

2. To this appeal, so preferred by the receiver removed by the order of the Court, a preliminary objection was taken, on behalf of defendants 5 to 21, respondents in the appeal. It was urged that the appeal was not maintainable: the order of removal of the receiver passed by the Subordinate Judge on 14th September 1931, was not an appealable order under the law, regard being had to the provisions contained in Section 104, Rule 1, Sub-rule (s), Order 43, Civil P.C. It was further contended by the learned advocate for defendants 5 to 21, respondents, that inasmuch as none of the parties to the suit had appealed, the order of removal of one of the joint receivers could not be challenged by the receiver so removed; the receiver himself had no right of appeal under the law, from the order as it stood. It has been strenuously contended on behalf of the appellant, that the preliminary objection directed against the maintainability of the appeal, could not be given effect to; it was urged that none of the grounds upon which the objection was formulated was sustainable in law. The first question that requires consideration is whether the order of removal of a receiver was appealable as such, irrespective of the position whether the receiver has the right to appeal against any order made under Rule 1, Order 40, which will presently be examined. The order appointing a receiver of any property under Rule 1, Order 40, Civil P.C, is an appealable order; order of removal has not been made appealable by any express provision, contained in the Code. The power of a Court to remove or discharge a receiver whom it has appointed may however be regarded as well established, and that power may be exercised at any stage. The power of removal must of necessity be treated to be an adjunct to the power of appointment a power incident to and following from the power of appointment. The authority to call a receiver into being necessarily implies the authority to terminate his functions. In this view of the matter, it may be held in favour of the appellant before us that the order of removal passed by the Subordinate Judge is an appealable order. This would be in consonance with the decision of this Court in the case of Sripati v. Bibhuti Bhusan AIR 1926 Cal 593, in which it was held, by special reference to the provisions of the General Clauses Act, that if the right of appeal was given against appointment, it was given also against the removal of a receiver.

3. The next question is the one that relates to the receiver's right to appeal against an order of removal passed by the Court appointing him. The receiver has under the law, the right to appeal when any order is made by the Code, under Rule 4, Order 40 of the Code. The express provisions so made, conferring the right of appeal so far as a receiver was concerned, limits the general right to appeal in any of the other matters mentioned in Rule 1, Order 40, including an order of removal of a receiver, by implication. It is inconceivable that the legislature intended that a receiver should have the right of appeal from any and every order passed by the Court appointing him, seeing that the express provision contained in the Civil Procedure Code limits the right of appeal by a receiver to the only case where there is a direction for the attachment of his property. The parties to the litigation had undoubtedly the right of appeal, if they wore aggrieved by any order passed by the Court, under Rule 1, Order 40 of the Code.

4. The view expressed above which follows the plain reading of the provisions of the Code of Civil Procedure, bearing upon the question under consideration, is amply supported by authority of decisions of Courts in England. According to the English practice, a summons or notice of motion for the discharge of a receiver, should be served on all the parties and the receiver; but a receiver is not generally entitled to appear at the hearing of the application: see Kerr on Receivers, Edn. 8, p. 344, and the cases referred to there. So far as decisions by Courts in America are concerned, based upon general principles, the views are very well pronounced, and we have no hesitation in accepting the same. A Receiver, according to decisions by American Courts, should not be heard on motion to vacate his appointment; he is not a party in interest, and has no standing to oppose the motion: He cannot interfere in questions affecting rights of parties and the disposition of the property in his hands; the receiver is not an agent or representative of the parties to the litigation. So far as the right of appeal is concerned, the decisions by American Courts indicate that a receiver cannot properly appeal from an order of the Court discharging him from his trust; the right to discharge him rests with the Court at any stage of the controversy; and from the exercise of this right the receiver cannot appeal. The Court in the exercise of its discretion may make any order discharging or removing a receiver for the proper care and management of the property in the Court's custody; and the receiver, an officer of the Court, should not be allowed by an appeal, to interfere with such an 'order: see High on Receivers, Edn. 4, pp. 313, 975, 982 and 897). In the case before us it is for the purpose of effecting economy, consonant with efficient administration of the property in suit, that the Court has directed the removal of one of the joint receivers; and it is pre-eminently a case where the rules of general application, to which reference has been made above, in the matter of right of the receiver when a question of his removal or discharge by the Court arises, are applicable. We have therefore come to the conclusion that upon the provisions contained in the Code of Civil Procedure and also upon principles of general application, the appeal by the receiver, as preferred to this Court, cannot lie, from the order by the learned Subordinate Judge. The preliminary objection raised on behalf of defendants 5 to 21, respondents, relating to the maintainability of this appeal should, in our judgment, be allowed to prevail, and the appeal must be dismissed. We direct accordingly.

5. Rule No. 1246 (M) of 1931 is discharged. The parties are to bear their own costs in the appeal and the Rule.

M.C. Ghose, J.

6. I agree.


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