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Asad Ali Chowdhury and ors. Vs. Syed Mohamed HusaIn Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.83
AppellantAsad Ali Chowdhury and ors.
RespondentSyed Mohamed HusaIn Chowdhury and ors.
Excerpt:
bengal tenancy act (viii of 1885), sections 93 to 95 - proceedings for appointment, of common manager--interim appointment of receiver--order to be based on evidence--verified petition of party, whether sufficient--civil procedure code (act v of 1908), order xl, rule 1. - 1. an application was made on the 3rd january 1916 for the appointment of a common manager, on the allegation that the petitioner no. 1 who was a shareholder in certain properties had appointed mr. h. c. f. meyer as the manager of his share in the property, that the collection up to that time had been made jointly by joint tahsildars, that mr. meyer dismissed certain tahsildars for their oppression and misconduct and that certain other co-sharers with the help of these dismissed tahsildars are preventing the tahsildars appointed by mr. meyer from entering the joint katchery house and thereby not only stopping all collections of rents by them but that their conduct was likely to lead to a serious breach of the peace. these statements were not supported by an affidavit, but by a petition.....
Judgment:

1. An application was made on the 3rd January 1916 for the appointment of a common manager, on the allegation that the petitioner No. 1 who was a shareholder in certain properties had appointed Mr. H. C. F. Meyer as the manager of his share in the property, that the collection up to that time had been made jointly by joint Tahsildars, that Mr. Meyer dismissed certain Tahsildars for their oppression and misconduct and that certain other co-sharers with the help of these dismissed Tahsildars are preventing the Tahsildars appointed by Mr. Meyer from entering the joint Katchery house and thereby not only stopping all collections of rents by them but that their conduct was likely to lead to a serious breach of the peace. These statements were not supported by an affidavit, but by a petition which was verified by the petitioners, who stated that the statements in the petition were true to the best of their information and belief. There is no statement as to the source of their information or which statement was upon information and which upon belief. In fact there is nothing in the verification which would enable the Court to bring to book any of the petitioners for making false statements. Upon this ex parte statement alone the learned Judge appointed a Receiver to take possession of the properties until he passed his final order for the appointment of a common manager, and directed the Receiver to receive 15 per cent, of the collection as his remuneration. We have held in a previous proceeding in connection with this case that in a proceeding under the Bengal Tenancy Act for the appointment of a common manager, it is competent to a Court to appoint a Receiver under circumstances under which it can rightly make the appointment. Order-XL, rule 1, of the Code of Civil Procedure provides: Where it appears to the Court to be just and convenient, the Court may by order (a) appoint a Receiver of any property whether before or after decree'; and '(c) commit the same (property) to the possession, custody or management of the Receiver'; and, etc. Now in order that an order of this kind should appear to the Court just and convenient, there must be evidence upon which the Court can come to a conclusion that it is just and convenient. In this case there was no evidence. The order of the lower Court must, therefore, beset aside.

2. If the Receiver has already taken over charge he must make over the charge to the proprietors. The matter has been somewhat delayed in consequence of several proceedings in this Court, but the proceeding for the appointment of a common manager should now be pushed on with as little delay as possible.

3. This appeal is allowed with costs, hearing fee five gold muhurs.

4. Let the record be sent down at once.


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