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The Eastern Mortgage and Agency Company, Ltd. Vs. Premananda Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.789
AppellantThe Eastern Mortgage and Agency Company, Ltd.
RespondentPremananda Saha and ors.
Cases ReferredMohini Mohan Patra v. Bam Narain Patra
Excerpt:
appeal - order refusing to remove receiver, if appealable--receivers appointed to act jointly--retirement of one, effect of. - .....alone. following on these disputes in which the right appears to have been with babu premananda saha, an application was made by mr. tweedie with a view to get his co-receiver removed on the ground, amongst others, that he was ignorant of zemindari business. mr. tweedie also stated that if his wishes were not given effect to he would himself retire. this he subsequently did.5. it has been contended before us by learned counsel on behalf of the appellant that on the retirement of mr. tweedie, the order appointing the receivers came to an end. for such a proposition no authority of any kind has been cited. it would be indeed dangerous to hold that if two persons are appointed as receivers and one were (to give an example) to suddenly die that then the estate would be without a receiver.....
Judgment:

Woodroffe, J.

1. I am of opinion that the preliminary objection that no appeal lies in this matter succeeds. This is not a case of an application for appointment of a Receiver or of a refusal to appoint a Receiver. In substance it is one for the removal of a Receiver who has already been appointed. Therefore, I think that no appeal lies. But as the case has been argued at some length I shall deal with some other points which have been raised.

2. The Court was of opinion that in the interest of the estate two Receivers should be appointed so that the interest of both the mortgagor and the mortgagee might be represented. Each of the parties was allowed to nominate. The plaintiffs nominated Mr. Tweedie and the defendants nominated Premananda Saha who is a Court officer, a sheristadar. Our attention has been drawn to the decision in Mohini Mohan Patra v. Bam Narain Patra 12 Ind. Cas. 780 : 14 C.I.J. 445., in which an opinion was expressed that it was not expedient to appoint a Court officer as a Receiver. But we are not concerned here with that question for we have not to consider an application for the appointment of any Court officer as a Receiver, but we have to determine whether any appeal lies upon an application to remove a person who is a Court officer from being a Receiver.

3. It appears clearly that the order for appointment of the Receiver was not by consent. It also appears that for some time the joint Receivers worked together without any (at any rate overt) quarrel. Later disputes arose between them which appear to have been due to several causes, some of which have been drawn to our attention by Mr. James. One cause of ill-feeling appears to have arisen out of the question as to whether or not Mr. Tweedie should retain for himself what is described as a personal nazar or whether it should be credited to the estate. Babu Premananda Saha very properly thought that this nazar should be credited to the estate.

4. Another point to be noted in this connection is that Mr. Tweedie while leaving India had purported to appoint a substitute to act for him and the Judge did not, and I think rightly, accept Mr. Tweedie's substitute. On Mr. Tweedie's return he found that his substitute had not been appointed and that his co-Receiver had received the commissions for the work done, as was right seeing that the work had been done by Babu Premananda Saha alone. Following on these disputes in which the right appears to have been with Babu Premananda Saha, an application was made by Mr. Tweedie with a view to get his co-Receiver removed on the ground, amongst others, that he was ignorant of zemindari business. Mr. Tweedie also stated that if his wishes were not given effect to he would himself retire. This he subsequently did.

5. It has been contended before us by learned Counsel on behalf of the appellant that on the retirement of Mr. Tweedie, the order appointing the Receivers came to an end. For such a proposition no authority of any kind has been cited. It would be indeed dangerous to hold that if two persons are appointed as Receivers and one were (to give an example) to suddenly die that then the estate would be without a Receiver and without the protection for which a Receiver is in fact appointed.

6. Moreover, our attention has been drawn to an order passed by the Subordinate Judge on the 4th July 1914, which states that Mr. Tweedie was a Receiver until the date when his resignation was accepted. It further directs that the sole Receiver Premananda should submit accounts for the period subsequent to that and until the appointment of another joint Receiver. The appellants appear to have refused to nominate any person to represent them as a Receiver in the place of Mr. Tweedie who had retired.

7. It has also been objected that even if these contentions with which we have dealt, are not made out, the objection which has been raised against the continuance of the sheristadar as Receiver has not been investigated. These objections appear to me rather to have come from Mr. Tweedie for the personal reasons stated than from the company in whose name he purports to act. But it is quite clear, and this is made cut in the 19th paragraph of the affidavit of Premananda, that the objection which was put forward in the name of the company was fully considered by the Court as also was the written answer of Premananda which was put up before the Judge.

8. On these grounds I hold that there is no appeal or a case before us for revision. The appeals, therefore, fail and are dismissed with costs. We assess the hearing fee at five gold mohurs in each case.

9. The Rules are discharged.


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