Ram Churn Lall Mahata And Anr. vs Birajan Kooer on 20 July, 1881

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Calcutta High Court
Ram Churn Lall Mahata And Anr. vs Birajan Kooer on 20 July, 1881
Equivalent citations: (1881) ILR 7 Cal 719
Author: Mitter
Bench: Mitter, Maclean


Mitter, J.

1. The respondents in this case are plaintiffs in a suit for recovery of the property of two brothers, their nephews, now dead, which is in the possession of the appellant, the widow of one of them.

2. The respondents prayed for an injunction under Section 492 of the Code to restrain the defendant from wasting or alienating the property which consists of moveables and immoveables, including a money-lending business of some extent. The Subordinate Judge, however, on the evidence submitted to him, thought that there were no grounds for issuing such an injunction as was asked for; but then he proceeded to find that it was necessary for the realization, preservation, and better management of the property in dispute, that a receiver should be appointed, and accordingly submitted the name of a suitable person to the District Judge, who sanctioned the appointment. The appellant objected to the appointment of any receiver, and the Judge considered that he had no authority to enter into that question; his functions under Section 505 being, in his opinion, confined to considering the fitness or unfitness of the person nominated by the Subordinate Judge for the post.

3. This appeal is preferred against the orders of the Subordinate Judge, dated 21st August 1880, and of the District Judge, dated 4th September 1880. Neither of these orders is, in my opinion, appealable. The former because-it is not an order under Section 503; but only a preliminary order or expression of opinion of the Subordinate Judge that he will appoint a receiver. He could not make an order appointing one until he had received the District Judge’s authority under Section 505, and it is the order not passed, appointing the receiver and providing for the other matters referred to in Section 503 (a), (b), (c), and (d) that is appealable.

4. The District Judge’s order of 4th September 1880 is not one against which the law allows an appeal.

5. In my opinion the District Judge ought to have taken the necessity for the appointment of a receiver into his consideration. I do not think that his duty is only to approve or disapprove of the particular person nominated by the Subordinate Judge. He is also required to make “such other order as he thinks fit;” and these words, in my opinion, give him full control over the matter of the appointment of a receiver.

6. But although the order of the Subordinate Judge is not appealable we think we ought to give such directions to the lower Court as the circumstances of the case require for its guidance in defining the powers to be granted to the receiver whom the Subordinate Judge will proceed to appoint.

7. We think that, as to the share of the property devolving from Chutterbhuj, the plaintiffs’ claim is prima facie a good one, and that the receiver should have full authority to represent that share until the suit is decided. He should, therefore, be empowered to manage the entire estate jointly with the defendant, all moneys realized by the joint management being divided into two portions, one portion to be paid into Court, the other being at the disposal of the defendant.

8. As this state of things may prove to be inconvenient, it is very desirable that the hearing of the suit should be expedited by the parties as much as possible, and the Subordinate Judge should give them special facilities for bringing on the hearing at the earliest possible date.

9. The costs of the proceedings in this Court, including vakeel’s fee, should, we think, be costs in the suit.

10. Subsequently, a rule having been issued at the instance of the plaintiffs (respondents), the matter came on for disposal on the 20th July, 1881.

11. Mr. W. C. Bonnerjee and Baboo Tarruck Nath Palit for the Petitioners.

12. Mr. H. Bell and Baboo Chunder Madhub Ghose for the Opposite Party. The Judgment of the Court (Mitter and Maclean, JJ.) was delivered by

Mitter, J.

12. In our judgment of the 6th of May 1881, we held that no appeal lay against the order of the Subordinate Judge, dated the 4th September 1880, soliciting the sanction of the District Judge to the appointment of a receiver. We further gave certain directions as to the conditions under which a receiver was to be appointed, etc. These directions were given by us, being under the impression that no receiver had then been appointed. It now turns out that a receiver had been appointed before our order was passed. Therefore these directions must be cancelled, and our order dismissing the appeal, upon the ground that no appeal lies, will alone stand. It is represented to us, that the Subordinate Judge has made no provision regarding any payment of money to the appellant for the purpose of defending the suit pending in the lower Court; and Mr. Bonnerjee on behalf of the plaintiffs gives his consent that there should be a direction given to the Subordinate Judge to allow to the defendant from time to time such sums of money as would be reasonably necessary for conducting the litigation on her behalf. We, therefore, direct that the lower Court, if any application be made to it on behalf of the defendant to be supplied with reasonable funds for the purpose of defending the suit, should take that application into his consideration, and allow such sums of money from time to time to be paid by the receiver to the defendant as in his discretion would be necessary to defend the suit.

13. The costs of this application will be costs in the cause. Let the record be forthwith sent back.

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