PRANAB SHABUY Vs. PRABIR KUMAR SHABUY

JUDGEMENT

(1.) The petitioners who are the plaintiffs in Title Suit No. 282 of 2002, have filed this revisional application under Article 227 of the Constitution of India challenging the Order No. 60 dated 21st November, 2008 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat, North 24- Parganas rejecting the application under section 151 of the Code of Civil Procedure (for short the 'Code') filed by the petitioners for removal of the receiver. Facts relevant for consideration are that the joint properties of the parties in the suit consists of two immovable properties (a) Premises No. 3, Roy Nilratan Adhikari Road, Ariadaha, Belgharia, North 24-Parganas and (b) Premises No. 23, Graham Road, Ariadaha, Belgharia, North 24- Parganas and a country liquor shop under the name and style of M/s. Kamarhati C.S.Shop situated at 3, Roy Nilratan Adhikari Road, Ariadaha, North 24-Parganas. In the suit, the petitioners filed an application for appointment of receiver in which the learned Civil Judge by order dated 17th March, 2003 appointed a learned Advocate as the receiver over the business to collect rent from the tenants of the joint properties and to run the country liquor business of the parties. Being aggrieved, the opposite party No. 1 preferred appeal being F.M.A. 1489 of 2003. On 7th July, 2003 after hearing the parties, the Division Bench disposed of the appeal modifying the order dated 17th March, 2003 by passing an order, the relevant portion of which is as under:

(2.) According to the petitioners though the Division Bench had appointed the opposite party No. 1 as the receiver of the business which is the subject- matter of the suit, however, all along the receiver managed the entire business alone and did not render accounts to the petitioners. It has been stated that auditors, appointed by the Court below pursuant to the order of the High Court, by letter dated 8th September, 2005 had sent in their resignation indicating therein the reasons of such resignation. Finding no other alternative the petitioners, filed an application under section 151 of the Code seeking removal of the receiver. Thereafter, written objection was filed. The application was heard and order dated 21st November, 2008 was passed rejecting the application for removal of the receiver which is as under :-

(3.) Learned Senior Advocate appearing on behalf of the opposite parties supporting the order under challenge has submitted that the order passed by the Division Bench was with regard to the conduct of the business and not regarding the removal of the receiver. Submission is made as the Court reached its conclusion and decision has been arrived at, same is an appealable order. According to him, the High Court cannot usurp the power where appeal lies.