Patna High Court
Maharaja Sir Rameshwar Singh Bahadur Of ... vs Babu Hitendra Singh And Ors. on 20 June, 1918
Equivalent citations: 46IND. CAS.655
JUDGMENT Mullick, J.
1. This appeal arises out of an order made on the 21st April 1917 by the Subordinate Judge of Darbhanga in an execution proceeding in which the Maharaja of Darbhanga appears as the decree-holder and certain relatives of his, alleged to be holders of babuana grants, appear as the judgment-debtors. The decree-holder is due a large amount and it appears that in 1910 in consequence of a compromise made between the parties a Receiver was appointed to hold charge of the properties for the execution of the decree, and an arrangement was sanctioned by the High Court of Calcutta under which a scheme was prepared for the discharge of the judgment debts.
2. The application out of which the present appeal arises relates to the question whether the Receiver, Babu Jatindra Nath Sinha, who was appointed in June 1910 should or should not be discharged. Incidentally there was a question raised as to whether the scheme prepared in 1910 could be revised and the execution of the decree secured by the sale or mortgage of the whole or part of the babuana properties, but the Subordinate Judge has declined to go into that question and has treated the dispute before him as one merely as to whether this particular Receiver should or should not be discharged; and he has come to the conclusion that no reason has been assigned for the discharge of the Receiver who is now holding this office and he has, therefore, dismissed the case before him.
3. Now so far as the appeal before us is concerned it is directed against this order of the Subordinate Judge, and no ground has been urged in regard to the conduct of the Receiver which would enable the decree-holder to ask for his discharge from us. But the real dispute goes deeper and the matters which were incidentally raised before the Subordinate Judge will, as the learned Vakil for the appellant states, have to be determined in the near future. He desires that we should now go into these disputes.
4. I think it would not be proper for us to go into matters which the judgment-debtors at all events have not come prepared to litigate here and that the proper course will be for the decree-holder, if he so chooses, to raise these matters in the first instance in the executing Court.
5. It is his contention that he has a right to re-open the scheme which was prepared and to ask the Subordinate Judge either to discharge the Receiver and to bring the properties to sale or to retain the Receiver and to direct him to sell either part or the whole of the properties. We are not concerned at this stage to express any opinion on this matter.
6. A preliminary point is raised as to whether an appeal lies at all against the Subordinate Judge's order, but it seems clear that the order of the Subordinate Judge refusing to discharge the Receiver was made under Section 47 of the Civil Procedure Code and that, therefore, an appeal would lie. The case of Mothibai v. Limji Nowroji Banaji 5 B. 45 : 5 Ind. Jur. 424 : 3 Ind. Dec. (N.S.) 32, though not on all fours with the present case, goes some way towards establishing the contention of the appellant that where a Receiver is appointed in an execution proceeding, the question as to his discharge is a question relating to the satisfaction of the decree.
7. The appeal will be dismissed with costs. Hearing fee three gold mohurs. It is said that different Counsel have been appointed respectively by the Receiver and the judgment-debtors. Only one hearing fee will be allowed to both.
Thornhill, J.
8. I agree.