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Bhairab Chandra Dutta Vs. Benoy Chandra Dutta and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.804
AppellantBhairab Chandra Dutta
RespondentBenoy Chandra Dutta and anr.
Cases ReferredDefries v. Greed
Excerpt:
civil procedure code (act v of 1908), order xl, rule 3 - receiver, appointment of--failure to take security as ordered by appellate court, effect of--'jurisdiction,' meaning of--error of law, whether takes away jurisdiction--decree or order made with jurisdiction, whether can be challenged collaterally. - .....of howrah in a suit instituted by jogen chandra dutta against rajendra chandra banerjee. in that suit jogen chandra dutta asked for a declaration that the property then in dispute had been purchased by him in the name of rajendra chandra banerjee. on the 6th january 1914 jogen chandra dutta applied for the appointment of a receiver. on the 19th february 1914, the subordinate judge rejected the application on the ground that in his opinion sufficient reasons had not been assigned for the appointment of a receiver. jogen chandra dutta then appealed to this court, with the result that, on the 27th april 1914, the order of the subordinate judge was set aside and the ease was remitted to him with instructions to appoint a receiver. this court also directed that security should be taken from.....
Judgment:

1. This is an appeal by the plaintiff in a suit for recovery of possession of land on declaration of title. The plaintiff is a Receiver appointed by the Subordinate Judge of Howrah in a suit instituted by Jogen Chandra Dutta against Rajendra Chandra Banerjee. In that suit Jogen Chandra Dutta asked for a declaration that the property then in dispute had been purchased by him in the name of Rajendra Chandra Banerjee. On the 6th January 1914 Jogen Chandra Dutta applied for the appointment of a Receiver. On the 19th February 1914, the Subordinate Judge rejected the application on the ground that in his opinion sufficient reasons had not been assigned for the appointment of a Receiver. Jogen Chandra Dutta then appealed to this Court, with the result that, on the 27th April 1914, the order of the Subordinate Judge was set aside and the ease was remitted to him with instructions to appoint a Receiver. This Court also directed that Security should be taken from the person so appointed. When the matter went back to the Subordinate Judge, he proceeded to appoint a Receiver on the 20th July 1914. The Receiver was accepted as a fit and proper person by both the parties and the order of the Subordinate Judge was in these terms: 'Babu Bhairab Chandra Dutta, a Pleader of this Court, is appointed as Receiver of the said property by common consent and the Court commits the said property to his possession and management by removing the defendants from the possession or custody thereof. The Receiver is hereby empowered to bring and defend suits in respect of the property aforesaid and realize rents and profits. The Receiver is further authorised to bring a suit against one Nandiram Agrani (that is, the respondent before us) for recovery of possession of the land, the latter is said to be in wrongful occupation of the lands; and the costs thereof will be met by the plaintiff until further order of this Court.' The Receiver thereupon instituted the present suit on the 6th December 1915. On the 8th December 1916, the Subordinate Judge dismissed the suit on the ground that the Receiver was not competent to maintain the action, because as he had riot furnished security, his appointment was inoperative in law. In our opinion, this view cannot possibly be supported.

2. We shall assume, for the present purpose, that this Court, when it remitted the case to the Subordinate Judge with directions to appoint a Receiver, also held that security should be taken from the person selected. We shall assume further that either through oversight or misinterpretation of the order of the High Court, the Subordinate Judge omitted to call upon the Receiver to furnish security. The fact is unquestionable that the Subordinate Judge did appoint a Receiver and did not take security as directed by this Court. The real point in controversy is, was the order of the Subordinate Judge an order made without jurisdiction and consequently liable to be challenged in a collateral proceeding, or was it merely an erroneous order which might be rectified by himself of his own motion, or on an application for review by the parties concerned, or by way of an appeal preferred by them to a superior Tribunal. It is indisputable that the propriety of an order or decree made in a cause in which the Court has jurisdiction cannot be challenged collaterally. This general principle applies to an order for appointment of a Receiver by a Court of competent jurisdiction and was applied in Greenwall v. Wilson 52 Kan. 109 : 34 Pac. 403, where it was ruled that in an action brought by a Receiver for the recovery of a property claimed by him by virtue of his Receivership, the defendant will not be permitted to question the propriety, regularity or necessity of his appointment. The respondent has consequently been driven to contend that the order was made without jurisdiction, and, in support of this view, has placed reliance upon the decision in Edwards v. Edwards (1876) 2 Ch. D. 291 : 45 L.J. Ch. 391 : 34 L.T. 472 : 24 W.R. 713. That case, however, is clearly distinguishable. There the order whereby the Receiver was appointed called upon him to give security, and the Court held that he could not be Receiver until he gave security; when he had done so, he could take possession because the order for appointment was really conditional [see also Defries v. Greed (1865) 34 L.J. Ch. 607 : 11 Jur. (N.S.) 360 : 12 L.T. 262 : 13 W.R. 632 : 146 R.R. 714, Evans, Ex parte, Wathins, In re (1880) 13 Ch. D. 252 : 49 L.J. Bk. 7 : 41 L.T. 565 : 28 W.R. 127]. Here the order of the Subordinate Judge was not conditional but absolute in its terms and took immediate effect. It is impossible to maintain the view that an order which is erroneous in law is necessarily an order made without jurisdiction. It is not necessary for our present purpose to define the exact meaning of the term 'jurisdiction', but jurisdiction may be taken to be the power of the Court to hear and determine cases, to adjudicate or exercise any judicial power with reference to them. In the exercise of its jurisdiction, the Court may commit an error of law; but the fact that such error of law has been committed does not divest the Court of its jurisdiction. In the case before us, the Subordinate Judge had undoubted jurisdiction to appoint a Receiver under the provisions of the Code of Civil Procedure. He held originally that the circumstances of the case did not justify the exercise of the jurisdiction vested in him. This Court took a contrary view and directed him to appoint a Receiver. The Court also prescribed the mode wherein that power should be exercised, namely, that security was to be taken from the person selected for appointment. The Subordinate Judge, for some unexplained reason, did not comply with the directions of the Court in this respect, but that did not oust his jurisdiction. We are clearly of opinion that the order for the appointment of the Receiver was operative in law, and that the ground which has been assigned by the Subordinate Judge for the dismissal of the suit cannot be supported.

3. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded for trial in accordance with law. The appellant is entitled to his costs in this Court, as also Rs. 16 as costs of the hearing before the Subordinate Judge. We further direct that a certificate be granted to the appellant under Section 13 of the Court Fees Act to enable him to obtain a refund of the Court-fees paid on the memorandum of appeal to this Court.


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