Patna High Court
Jagdish Prasad Singh vs Anandeo Narain Singh And Ors. on 14 April, 1961
Equivalent citations: AIR1961PAT449, AIR 1961 PATNA 449
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. This miscellaneous first appeal by the appellant, who was defendant No. 1 in a partition suit, is directed against the order dated the 19th of December, 1959, of the learned Subordinate Judge refusing the prayer of the appellant for a direction to the previous receiver, Shri Kali Prasad Singh, Advocate, not to hand over charge to plaintiff respondent No. 1; who was appointed receiver by this Court during the pendency of First Appeal No. 271 of 1953.
2. In the partition suit Kali Prasad Sinha had been appointed receiver by the court below by its order dated the 11th of January, 1950. The plaintiff claimed one-sixth share in the property sought to be partitioned and, by the preliminary decree passed by the court below, the share of the appellant was also declared to be one-sixth. As against the said decree of the court below. First Appeal 271 of 1953 was filed by the appellant. The appeal was dismissed by a Bench of this Court on the 5th of November, 1959, subject to the incorporation in the decree of the right of Srimati Ramsakhi Devi widow of Gorakh Nath Singh deceased, defendant No. 11.
The plaintiff respondent filed an application in this Court on the 20th of October, 1959 for appointing him receiver of the suit property in place of the then receiver, Kali Prasad Sinha. The appellant filed his rejoinder to the said petition. The arguments in the First Appeal also, by that time, were over. The Bench of this Court bv order dated the 28th of October, 1959, appointed the plaintiff as receiver in place of Kali Prasad Sinha and directed the latter to hand over possession of the properties to the former forthwith.
3. After the disposal of the First Appeal, the plaintiff respondent filed a petition on the 9th of November, 1959, in the Court below for directing 'Shri Kali Prasad Simha, advocate, receiver to submit all the account papers etc. and all other papers concerning the receivership in court at once so that the petitioner may be able to take charge of the same in presence of the court'. The appellant, by his petition filed on the same date, asked the court to allow Kali Prasad Sinha to continue as receiver and to reject The plaintiffs prayer. Ultimately, the appellant filed a petition on 15-12-59 praying 'that the receiver Shri Kali Prasad Sinha be directed not to hand over charge of the estate concerned and the petition of the plaintiff for handing over charge be rejected on the grounds mentioned in the said petition.
The grounds in main were that the Plaintiff was not a fit person to be appointed a receiver and that his appointment by the High Court did not enure after the disposal of the First Appeal. The court below has rejected the Prayer of the appellant. Hence this appeal.
4. Two points were urged in support of this appeal by the learned Government Advocate (i) that the appointment of the plaintiff as receiver by this Court came to an end on dismissal of the First Appeal as it could not enure after the confirmation of the preliminary decree passed in the partition suit by this Court; and (ii) that various allegations had been made by the appellant against the plaintiff and, in view of the terms of the Order dated 28-10-59 of this Court appointing the plaintiff as receiver, the court below was competent to look into, and enquire about, them and to pass necessary orders for the removal of the plaintiff from receivership.
5. It was contended on behalf of the plaintiff respondent that no appeal lies against the order of the learned Subordinate Judge, which is neither an order appointing a receiver nor one refusing to remove or removing a receiver. It was further contended that the partition suit is continuing and will continue till the preparation of the final decree and the order of this Court appointing the plaintiff as receiver obviously and clearly was meant to be in force and operative till the preparation of the final decree and that no allegation of subsequent event had been made against the plaintiff nor was a case made out or any prayer made for his removal.
6. In my opinion, the argument advanced on behalf of the appellant is not sound and correct while that on behalf of the respondent has got to be accepted. I am of the view that the order in question is not an appealable one as it is neither an order appointing a receiver nor one removing or refusing to remove the receiver. It is, therefore, not an order of the kind which was held to be appealable in Rayarappan Nayanar v. Madhavi Amma, 1949 FCR 667 : (AIR 1950 FC 140) nor of the kind discussed in the case of Velayudhan Narayanan v. Mathevan Narayani, AIR 1955 Trav-Co 163 on which reliance was placed on behalf of the appellant.
In the instant case, the court below has merely refused not to carry out the directions of this Court. The court below was bound to give and has given, effect to the order dated 28th October, 1959, passed by this Court appointing the plaintiff as receiver. It has done nothing more nothing less. Even assuming that the appeal is competent, I am of the view that it is without substance. It is a well established principle of law that a partition suit does not come to an end by the passing of the preliminary decree; it continues till the passing of the final decree. The learned Government Advocate neither could nor did advance any contrary argument. He, however, placed some reliance upon the following passage (at page 190, column (2)) in the case of Ramsarup Das v. Rameshwar Das, AIR 1950 Pat 184 :
".....the Dower conferred on the Court by Order 40, Rule 1 (a), Civil P. C. to appoint a receiver refers only to the appointment of a receiver in respect of property in regard to which litigation is pending, that is to say, as long as the suit remains pending. In agreement with the views of this Court, it must be held that this Court has no power to direct the appointment of a receiver, or the continuance of the receiver already appointed, to hold charge of the property after these appeals are determined one way or the other."
If I may say so with respect, the proposition ot law has been correctly stated in the passage quoted above and, on the facts of that case, it was held that the suit had become infructuous and had come to an end on the death of the plaintiff. In the instant case, however, it is beyond any doubt that the suit is still Continuing and, therefore, the appointment of the receiver is effective so long the suit remains pending. The Division Bench decision of the Lahore High Court in Shankar Das v. Behari Lal, AIR 1925 Lah 445 cited on behalf of the respondent is very much, on the point.
Moreover, it is to be remembered that the order was passed by the High Court when arguments in the First Appeal had concluded and judgment had been reserved and the very terms of the order clearly indicate that it was meant to be operative till the final conclusion of the suit, that is to say, till the passing of the final decree.
7. I find no substance either in the second contention put forward on behalf of the appellant. On reading the petitions of the parties on which the order in question came to be passed, it is dear to me that the appellant made out no case nor did he pray for the removal of the plaintiff from receivership. In view of the order of this Court appointing the plaintiff as receiver it was not open to the Court below to so into the Question as to whether he was a fit Person to be so appointed. This Court, while appointing the plaintiff as receiver, has ordered;
"The plaintiff receiver will be accountable to the court below and will be at liberty to take direction from time to time from that Court for carrying out the management of the properties entrusted to his care and also for the disbursement of the income."
I may, therefore, observe that, in view of this term of the appointment, it would be open to the court below to go into the question of the liability and the account of the plaintiff receiver, to examine the allegations made on behalf of the appellattt or, as a matter of that, by any of the parties to the suit and to pass such order or orders' as it may deem fit and proper concerning the liabilities and accounts of the plaintiff and even to remove him on a proper case being made out for doing so. In the result, the appeal fails and is dismissed with costs.
8. Before I part with this case, I may mention one more fact. It would appear from the order of this Court dated 28-10-59 appointing the plaintiff as receiver that at the time of hearing of the First Appeal, in pursuance of some understanding between the parties, six takhtabandis of one-sixth share each for each of the six parties to the suit had been prepared by the plaintiff respondent and the appellant was given an option to choose one of such takhtabandis but he backed out from the tentative understanding which had been arrived at and served a registered notice on his advocate not to select any takhta. Mr. Lal Narayan Sinha stated before us that, subject to the decision in the Supreme Court Appeal against the preliminary decree, he had advised the appellant to agree to select one such takhta and to take its possession.
The plaintiff respondent was also agreeable to this. We, therefore, after concluding the hearing of the appeal, adjourned it for about a week. But it is regrettable that no compromise was arrived at between the parties due to one reason or the other.
Ramaswami, C.J.
9. I agree.