ORDER
S.B. Sinha, J.
1. This application is directed against the order dated 22-7-1989 passed in Misc. Case No. 1/89 arising out of Title Suit No. 9 of 1956 by Sri M. P. Chakraborty, 6th Additional Subordinate Judge, Hazaribagh, whereby and whereunder he dismissed the said application in limine.
2. The fact of the matter lies in a very narrow compass.
3. Gyani Ram (since deceased) father of the opposite party Nos. 1 to 4 filed a suit for partition against the petitioners and/or their predecessors-in-interest, who were arrayed as opposite party Nos. 15 to 18 therein.
4. In that case, it was contended on behalf of the contesting defendants that thhe proper-tics belonged to them and the plaintiffs had no claim therein.
In that case, however, a preliminary decree was passed and thereafter, an application for initiation of a final decree proceeding was filed. In the said proceeding, a pleader Commissioner was appointed and while he was preparing his report, an application dated 8-4-1983 was filed by the plaintiffs alleging inter alia therein that the defendants gave up their shares in favour of the plaintiffs as a result whereof, he bcame the sole owner.
5. By an order dated 7-7-1984, the learned Subordinate Judge, Hazaribagh has passed the following order:–
“That
(i) the lands under management of the Receiver are released from the management of the Receiver.
(ii) The khas possession of the plaintiff in personal capacity in respect of the suit lands mentioned in Schedules B and C in favour of the plaintiff is hereby declared, and
(iii) let the release order and possession of the plaintiff in respect of the suit lands aforesaid be only published in village.”
6. The petitioners filed a civil revision application against the said order dated 7-7-1984 which was admitted and the proceedings of the Court below was stayed.
7. However, during pendency of the said civil revision application, the plaintiffs filed an application for withdrawing the suit itself upon which this Court passed an order dated 4-8-1986 (Annexure-4), which is as follows:–
”When this case was called out, Mr. Kishore on behalf of the opposite party No. 1 submitted that opposite party No. 1, who is plaintiff in the Court below does not want to prosecute the partition suit i.e. partition suit No. 9 of 1956. He prayed that he may be allowed to withdraw that partition suit.
If the partition suit is withdrawn the order impugned dated 7-7-1984 becomes non est. Mr. Kishore undertakes that the opposite party No. 1 shall file an application withdrawing the suit by the 18th August, 1986. If no application is filed by that date the suit shall stand dismissed.
With this observation, this application is disposed of.”
8. On 19-8-1986, the plaintiff, however, filed an application that he be declared the owner of the suit property and he may be permitted to withdraw this suit with that observation.
The plaintiff, however, did not file an application for withdrawing the suit by 18-8-1986 and by an order dated 10-3-1987, the plaintiff’s suit was dismissed.
9. The plaintiffs filed an appeal as against the said order as a first appeal as also a Misc. Appeal which were registered as F.A. No. 62 of 1987(R) and M.A. No. 40 of 1987(R) respectively.
10. It is stated that during pendency of the suit, Gyani Ram was appointed as a Receiver and after him the opposite party No. 5 was appointed as a Receiver.
11. The petitioners filed an application for removal of the plaintiff from receivership, and the said application was allowed by an order dated 22-3-1988 (Annexure-6) by this Court in Misc. Appeal No. 96 of 1982(R) observing that the Subordinate Judge, where the case was pending was directed to appoint a receiver afresh in the light of the order passed by this Court earlier, and it would be better if the suit itself be disposed of expeditiously.
12. According to the petitioners, opposite party No. 5 had remained in possession of the suit properties in the capacity of a Receiver till 10-3-1987 but he did not render any accounts whatsoever.
13. The petitioner filed an application under Order 40, Rule3 of the Code of Civil Procedure for rendition of account, but by reason of the impugned order, the said application has been dismissed.
14. The main contention of the opposite parties appears to be that the petitioner had no locus standi to file an application under Order 40, Rule 3 of the Code of Civil Procedure, Allegedly, the petitioners filed such application on 21-5-1988 and by an order dated 15-10-1988, the said application was rejected.
15. It was further contended that in the said preliminary decree, the plaintiffs were held to be entitled to 3/4th share and the said preliminary decree was confirmed by this Court in F.A. No. 62 of 1987(R).
16. It was further contended that after passing the order dated 7-7-1984, a general publication was made in the village declaring the plaintiffs’ possession over the entire suit land on 31-7-1984.
17. It has further been stated that an application for Review was filed by the opposite parties Nos. 1 to 4 when the suit was dismissed as withdrawn, and by an order dated 7-5-1988 wherein, the learned Court below had passed the following order :–
“I also find that there is order of the Hon’ble High Court for filing withdrawal petition by 18-8-1986 but on 18-8-1986 Court was closed hence petition was filed on
19-8-1986. Therefore, it cannot be said that withdrawal petition was filed beyond period, because when 18-8-86 was holiday, 19-8-1986 will be deemed as 18-8-1986 for this purpose. Therefore, I find that there is sufficient reason before me to review the order passed by the previous Court on 10-3-1987 by which suit was dismissed. Therefore, previous order is modified as below:–
The suit is dismissed as withdrawn by the plaintiff as per petition filed by plaintiff dated 19-8-1986. So far deposited amount of 1/4th share is concerned, it will be decided by the Court when person entitled, files petition for payment. It is important to note that plaintiff Gyani Ram is now dead and his son has filed the petition of review. Therefore, petition of review is allowed as per petition of withdrawal of the suit dated 19-8-86. Miscellaneous petition is decided accordingly.”
18. In short, the contention of the opposite party Nos. 1 to 4 appears to be that this application is barred under the principles of res judicata.
19. By reason of the impugned order, the learned Court below has dismissed the application filed on behalf of the petitioner in limine stating that a Misc. case cannot be registered, in view of the provisions contained in Rule 459 of the Civil Court’s Rule.
20. It was stated therein that the petitioners, if they so desire may file a regular title suit against the receiver.
21. The question which arises for consideration is as to whether the application filed by the petitioner was barred under the principles of res judicata by reason of the aforementioned order dated 15-10-1988.
22. The learned Court below while passing the said order was considering an application filed by the petitioner to appoint a Commissioner to take account from the receiver in the suit.
In the said order, the learned Court below held as follows : —
“Sri B. N. Dey, Advocate, who is receiver in the suit, has appeared in Court and submitted
that he has filed all the accounts in the Court. Plaintiff has not challenged the account nor he has any grievance against the receiver. But defendants Nos. 15, 16, 17 and 18 have filed petition in the Court for appointment of Commissioner for taking account from the receiver. It is important to note, that now suit is not pending in this Court, nor final decree is to be drawn, and suit is dismissed as withdrawn. Defendants Nos. 15 to 18 have got no right, title and interest in the suit property, because they have got no share in the suit property either in the original decree on later on. When plaintiff has got no grievance against the receiver and defendants 15 to 18 have no interest in the property, there is no necessity for issue of commission for account. Under the circumstances and order of Hon’ble High Court, as well as previous orders of the Court, petitions filed by the defendants Nos. 15 to 18 is rejected. Let the record be deposited in record room, because suit is dismissed and withdrawn.”
23. From the impugned order, it appears that the learned Court below in passing the same did not consider the order passed by it earlier on 15-10-1988.
24. The learned Court below, in passing the impugned order has failed to take into consideration that even if a separate Misc. case cannot be registered, such an application is entertainable in view of the provisions contained in Order 40, Rule 3 and Order 40, Rule 4 of the Code of Civil Procedure, which reads as follows:
“(1) and (2) …………….
(3) Duties — Every receiver so appointed shall–
(a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;
(b) submit his accounts at such periods and in such form as the Court directs;
(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the properly by his wilful default or gross negligence.
(4) Enforcement of receiver’s duties —
Where a receiver–
(a) fails to submit his accounts at such periods and in such form as the Court directs, or
(b) fails to pay the amount due from him as the Court directs, or
(c) occasions loss to the property by his wilful default or gross negligence.
the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.”
25. In terms of Clause (d) of Order 40, Rule 3 of the Code of Civil Procedure, a receiver can be held responsible for any loss occasioned to the property by his wilful default or gross negligence.
26. The principles enunciated in Rule 3(d) and 4(c) of Order 40 of the Code of Civil Procedure includes not only a provision for protection of the property entrusted to the receiver but also provides for accounting of the income derived from the property.
27. While a receiver is appointed by a Court, the property become custodia legis which means that the Court itself takes control thereof. It is, therefore, the duty and the responsibility of the Court to see that the properties are managed efficiently and in such a manner so that the same can be restored to the persons for whose benefit the properties were being held custodia legis.
28. From the provisions aforementioned, it is clear that the receiver is clearly accountable to the Court and thus whenever a parly comes to the Court stating that the receiver has failed to produce the account and/or is otherwise guilty of any act of misdemeanour; the Court is clearly under an obligation to inquire into such a matter and issue necessary directions upon holding an enquiry in relation thereto and thereafter take such action as it may deem fit and proper.
29. Mr. D. Dash, the learned counsel appearing on behalf of the O.P. Nos. 1 to 4 as also Mr. V. Shivnath appearing on behalf of the O. P. No. 5 submitted that the aforementioned order dated 15-10-1988 shall operate as res judicata.
30. It is true that principles of res judicata apply at different stages of the suit, but it is also well known that interlocutory orders do not operate as res judicata.
31. It is thus in a given case, the Court may not entertain a subsequent application for passing interlocutory orders filed by a party, if such a prayer has earlier been rejected but the same is not done by invoking the principles of res judicata. (See AIR 1961 SC 941). Reference in this connection may be made to the United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee, AIR 1972 SC 1201 and in Anirudha Adhikari v. Amarendra Adhikari, AIR 1988 Orissa 42.
31 A. Further, in this case, as noticed from the facts stated hereinbefore that the suit was dismissed and the first appeal preferred by the plaintiffs-opposite party Nos. 1 to 4 being F.A. No. 62 of 1987 (R) was disposed of on 7-3-1989 (vide Annexure-5/1 to the civil revision application).
32. In this situation, the suit was finally disposed of on 7-3-1989 and on that date only, therefore, the order of learned Court below dated 10-3-1987 dismissing the plaintiffs suit attained finality.
33. In view of the fact that the plaintiffs’ suit was withdrawn, the earlier preliminary decree passed in their favour also became non est.
34. In this view of the matter, in my opinion, it was obligatory on the part of the learned Court below to consider as to whether the receiver appointed by it had submitted accounts or not and if so whether thereby the receivers appointed by the Court have duly accounted for the income derived from the properties in suit or not.
35. In the result, this application is allowed, the impugned order is set aside and the learned Court below is hereby directed to
entertain the application filed by the petitioners and pass an appropriate order upon verification of the accounts, if the same has already been submitted by the Receiver.
In the facts and circumstances of the case, there will be no order as to costs.