T SUBRAMANYA BHATTA Vs. C ABDULLA

JUDGEMENT

(1.) A single, simple point has been pressed before me in revision. The receiver of an estate, having allegedly mismanaged it, caused loss and the plaintiff, now found to be the owner by Court in the very litigation where the receiver was appointed sued him in heavy damages. Whereupon the defendant receiver moved by a memo that he be permitted to defend himself from out of the estate funds. The Trial Court, which appointed him, declined to accord the permission sought but on appeal the Subordinate Judge allowed the receiver's request. Meanwhile, as a matter of fact, the receiver himself was discharged but the suit against him survives. The plaintiff has come up in revision complaining that no appeal lay and further that his estate should not be used to finance the wrong doer in defending himself against the consequences of the wrong to the estate. If no appeal lies, the second question does not arise. But this question is mixed up with whether there is power at all in the Court to pass the order impugned.

(2.) A memo by a receiver, it was urged, was only an administrative matter and an administrative order even though by a Court, could not be subject even to a revision, let alone an appeal. I cannot assent to such a broad proposition. There are memos and memos, some seeking administrative directions, other involving judicial determination of rights. The former is perhaps not, while the latter certainly is amenable to superior judicial scrutiny. But is there a right of appeal, which is a creature of statute Yes, if the order falls within the scope of O.43 R.1(s); otherwise, no. And O.43 R.1(s) directs us to enquire whether the order is a judicial, as distinguished from a purely administrative one and if the former, further whether it can be treated as one under O.40 R.1(d) or R.4 C. P. C. I have no doubt that R.4 does not cover such cases. And, indeed, the appellate Court justified its jurisdiction only under O.40 R.1(d) taking the view that here is an order conferring power on the receiver to defend a suit and so, in terms, it comes within R.1(d). I do not agree and will give my reasons for it. O.40 R.1(d) reads:

(3.) The office of receiver being a substitute for the owner, the Code vests in the Court the power to clothe the receiver with all or any of the powers of the owner. The receiver must keep the property committed to the Court's charge doing all such acts as the proprietor would, lest there should be inaction, attrition, waste and disrepair. O.40 R.1(d) is thus a necessary provision in this behalf and incidentally but illustratively enumerates these powers; and its meaning will be too obvious to be misunderstood if we rewrite it, shedding the words not necessary for our purpose, to read as follows: