K SATYANARAYANA Vs. COMMISSIONER OF INCOME TAX HYDERABAD

JUDGEMENT

(1.) All these matters arise out of a common order of the Court of the Subordinate Judge, Kurnool, dated 5th October, 1956, fixing the remuneration of the Receiver under Order 40, rule 2 of the Code of Civil Procedure. The facts material to the present inquiry are as follows :- One Veeraswamy, a resident of Kurnool, died on the 27th December, 1952, leaving him surviving his wife, two minor sons and a mistress. He had a fleet of buses and other properties, moveable and immoveable. He was also heavily indebted to the tune of 4 lakhs of rupees at the time of his death. His wife as the 1st plaintiff, his minor sons as plaintiffs 2 and 3, and his mistress as the 4th plaintiff, filed O.S. No.11 of 1953 on the file of the Sub-Court, Kurnool, for the administration of his estate. All the creditors of the estate were impleaded as defendants in the suit and eventually a preliminary decree was passed.

(2.) During the course of the suit, one Srirami Reddi, a creditor of the es ate, was initially appointed as receiver. He resigned his office subsequently and his resignation was accepted on the 25th February, 1954. On the nth March, 1954, one Sri P. Venkatareddi, an advocate of the Court, was appointed Receiver. His remuneration was initially fixed at Rs. 500 per month pending final fixation. Subsequently by an order of the Court, dated 24th April, 1954, Mr. Venkatareddi's remuneration was fixed at 5 per cent, of the sale proceeds as well as the income from the estate. It appears that this order was passed without notice to plaintiffs 2 to 4. On the 6th November, 1954, those plaintiffs filed I.A.No.764 of 1954, requesting the Court to fix the remuneration of the receiver at Rs. 200 per month plus 2 per cent, of the gross realisations. By reason of his having been appointed as Public Prosecutor, Mr. Venkatareddi, resigned and the present receiver, an advocate of the District Court, was appointed as such on the 1st July, 1955. On the nth August, 1955, the present receiver filed a memo, in the Court requesting the Court to fix his remuneration. As already stated, in and by his order, dated 5th October, 1956, the learned Subordinate Judge fixed the remuneration at 3 per cent, of the gross sales and income from the estate subject to a minimum of Rs. 400 per month. Plaintiffs 2 to 4 have filed C.M.A.No.193 of 1957 against the order in I.A. No. 764 of 1954 and C.M.A.No.194 of 1957 against the order on the memorandum filed by the receiver. Alternatively, plaintiffs 2 to 4 have filed C.R.P. No.918 of 1957 against both the orders.

(3.) The first of the questions which falls for determination is whether the appeals filed against the order of the lower Court, admittedly passed under Order 40, rule 2, Civil Procedure Code, are maintainable. It may be noted initially that Order 43, rule 1(s) specifically limits the right of appeal to an order made under Order 40, rule 1, or under Order 40, rule 4, Civil Procedure Code. An order made under Order 40, rule 2, has not, however, been made appealable. Learned counsel for the appellants, has however relied upon a decision of the Nagpur High Court in Messrs. Budhulal Jagannath v. The Hirdagarh Colleries Ltd., A.I.R. 1943 Nag. 64, as lending support to his contention that an order re-fixing the remuneration of a receiver is an appealable order. In that case, actually an application for revision was filed against an order fixing the remuneration of a receiver. It was argued that the order was not revisable because it did not fall under section 115 of the Code of Civil Procedure and also that the order being one made under Order 40, rule 2, Civil Procedure Code, was not appealable. The learned Judges took the view that if the original order of appointment contained a direction as regards salary, that order would have been appealable as one being made under Order 40, rule 1, and in that appeal the quantum of the salary fixed by the Court could have been called in question.