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Rameswari Chaudhurani Vs. K.B. Dutt - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.685
AppellantRameswari Chaudhurani
RespondentK.B. Dutt
Cases ReferredRai Charan Mandal v. Biswanath Mandal
Excerpt:
appeal, infructuous - order appealed against having been carried, out--stay order before filing appeal, if can be obtained--civil procedure code (act v of 1908), order xli, rule 5(2). - .....that letter that he intended to carry out the order of the court. it appears that on the 10th of june the receiver did effect a settlement with mr. manuk--the property was reconveyed to him on that date, the release was signed, and, we are informed, the release was registered on the same date. on the 23rd of june, the very last day which was open to the appellant, this appeal was filed.2. now, to my mind, as soon as the statement that the matter had been settled and the property had been reconveyed was brought to the knowledge of the court, the time of this court ought not to be occupied in a further hearing of the appeal, and for this reason: at the time the property was reconveyed and the release granted, the receiver was acting under an order of the court, which was a perfectly good.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal from a judgment of Mr. Justice Chaudhuri which was made on the 26th of April 1915, where by he gave leave to the Receiver, Mr. Dutt, to settle a claim of the estate against a man named Mr. Manuk for Rs. 15,800. A letter was sent to the Receiver on the 1st of May by the executors saying that they were going to appeal from the order of Mr. Justice Chaudhuri, and asking the Receiver not to take any steps in respect of that order until the appeal was heard. We were at first told that there was no answer to this letter, which was a mistake for it appeared that an answer had been sent on the following day, the 2nd of May. A part of the answer has been read out to us by Mr. Chuckerbutty, and it was obviously to the effect that the Receiver could not be bound by the terms of the letter and that if the executors wanted to stay the proceedings they must take the necessary steps by applying to the Court. The Receiver also gave notice in that letter that he intended to carry out the order of the Court. It appears that on the 10th of June the Receiver did effect a settlement with Mr. Manuk--the property was reconveyed to him on that date, the release was signed, and, we are informed, the release was registered on the same date. On the 23rd of June, the very last day which was open to the appellant, this appeal was filed.

2. Now, to my mind, as soon as the statement that the matter had been settled and the property had been reconveyed was brought to the knowledge of the Court, the time of this Court ought not to be occupied in a further hearing of the appeal, and for this reason: at the time the property was reconveyed and the release granted, the Receiver was acting under an order of the Court, which was a perfectly good order at the time, and under that order Mr. Manuk, who was not a party to the suit, obtained possession of the property. Not only that: we are informed that he has in fact parted with it to another individual altogether. Therefore, if we were to reverse this order,--I do not say for a moment that on the merits this is an order which ought not to have been made and we ought to reverse it, but supposing we did--our order would have no effect. We shall have no jurisdiction to order Mr. Manuk to reconvey the property to the Receiver and, therefore, it seems to be quite useless and mere waste of time for this Court to go on discussing the point which has been urged by the appellant. I may say that if there is any injustice or any harm done to anybody, it is entirely the fault of the appellant, because after the warning which he received from the Receiver, the obvious thing for him to do was to file an appeal at once and then to come to this Court and make an application to the Court to restrain the Receiver from acting upon the order of Mr. Justice Chaudhuri, until the hearing of the appeal. Had this course been adopted, the Receiver would not have thought of proceeding with the order of Mr. Justice Chaudhuri. But that obvious course was not adopted. On the contrary, the matter was left until the very last day which was open to the appellant, namely, the 23rd of June. Under these circumstances, I think this appeal should be dismissed.

3. The costs of both parties will come out of the estate.

John Woodroffe, J.

4. In order to make out a claim for relief the appellant should at least have applied for a stay-order, which the Receiver invited her to get if she was dissatisfied with the Judge's order. Without expressing any opinion on the merits or whether an appeal lies I think the matter comes too late. For this reason I agree that the appeal should be dismissed.

Asutosh Mookerjee, J

5. I agree that the appeal has become infructuous by reason of events which have happened since the order of the 26th April 1915, and should not consequently be entertained. In my opinion, this appeal falls within the class of cases where it is incumbent upon a Court of Appeal to take note of events subsequent to the order under appeal: Hazari Mull v. Janaki Prosad 6 C.L.J. 92; Ramyad Sahu v. Bindeswari Kumar Upadhay 6 C.L.J. 102; Rai Charan Mandal v. Biswanath Mandal 26 Ind. Cas. 410 : 20 C.L.J. 107.

6. On the 26th April 1915 the Trial Court granted leave to the Receiver to enter into the proposed settlement with the debtor, and to execute in his favour a release in respect of the hypothecated property. On the 1st May, the present appellant, who had unsuccessfully opposed the application of the Receiver, intimated to the latter that he intended to appeal against the order and requested him not to carry out the order meanwhile. On the following day, the Receiver replied that he could not wait indefinitely for the proposed appeal and would proceed to carry out the order, unless an order for stay was obtained from the Court of Appeal. Notwithstanding this clear intimation, the appellant took no steps to file an appeal or to obtain an order for stay of proceedings. The Receiver carried out the order, the settlement with the debtor was duly effected, and the deed of release in his favour was executed and registered on the 10th June 1915. The present appeal was there after lodged on the 23rd June 1915. The excuse offered is that the order itself was not filed till the 11th June 1915; that merely shows, however, that the appeal was filed within the time allowed by law. But, plainly, there was nothing to prevent the appellant from obtaining an order for stay, even before the appeal was actually lodged, as is clear from the principle recognized in Order XLI, Rule 5, sub-rule 2, of the Code of Civil Procedure. In my opinion, it was the duty of the appellant, in the event which had happened, to obtain a timely order for stay. Complications of the gravest character may obviously arise if we entertain the appeal and set aside the order; we may prejudice the position of parties who had no notice of the intended appeal. The debtor is not a party to these proceedings, and, we are informed that since the execution of the release, the property has been transferred by him to a stranger who also is not before the Court; the position might have been different if benefit had been received by one of the parties to the proceedings, who might, on reversal of the order, be called upon to make restitution. It has not been suggested that the Receiver and the debtor conspired to rush matters through, with a view to embarrass the Court of Appeal in the effective exercise of its jurisdiction; if such a case had been alleged and made out, it would have been necessary for us to consider what steps we should take so as to ensure that the ends of justice might not be defeated. But no such question arises here. On the other hand, upon the facts before us, it is plain that by reason of the laches of the appellant, the appeal has become infructuous. On these grounds I agree that the appellant has disentitled himself to the assistance of the Court, and that his appeal must be dismissed.


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