REBATI RANJAN CHAKRAVARTY Vs. UMAPRASANNA MUKHERJEE

JUDGEMENT

(1.) This is a petition, in revision on behalf of defendants nos. 1 and 2 and is directed against an order of Mr. P.M. Lahiri, learned Subordinate Judge, Birbhum, dated the 8-12-1952, directing the payment to the Receiver, who is opposite party No. 1 in this Rule, his salary at the rate of Rs. 5007- per month from 20-1-1951 pros-pectively till his discharge.

(2.) The petitioner, opposite parties Nos. 2, 3, and 4 were co-trustees of two trust estates known as Brajabala Trust Estate and Ram Ranjan Trust Estate.

(3.) As was to be expected, the trustees had their differences with the result that on 13-11-1950, two Title Suits Nos. 110 of 1950 and 111 of 1950 were instituted in the Court of the Subordinate Judge, Birbhum, by the plaintiff opposite party No. 2 against the petitioners as defendants nos. 1 and 2 and opposite parties Nos. 3 and 4 defendants Nos. 3 and 4. In these suits, the plaintiffs prayed for removal of the trustees and appointment of new trustees for the framing of a scheme of management, for the appointment of a Receiver, for the issue of injunction, for acounts and for other incidental reliefs. On the same day, an application was made by the plaintiff for the appointment of a Receiver. On 18-1-1951, Mr. Nishakar Choudhury, learned Subordinate Judge of Birbhum made an order appointing the opposite party No. 1, Uma Prasanna Mukherjee, B.L., Honorary Magistrate, Suri, as Receiver "for managing the Brajabbala Trust Estate and Ram Ranjan Trust Estate during the pendency of the suits Nos. 110 and 111 of 1950." The Receiver was directed to furnish security of. Rs. 40,000/- within 25-1-1951. The learned Subordinate Judge further directed that "the Receiver will get Rs. 500/- per month as fixed remuneration with effect from the date-on which the security is accepted by the Court and on acceptance of the security, the possession, of the trust property will be vested in him." The last sentence of the order which is just quoted is somewhat unhappy. It is contrary to the general rule that the Receiver has to take possession and assume charge of the estate in respect of which he is appointed Receiver and that he cannot be deemed to be in possession merely because he furnishes security. On 20-1-1951, the Receiver furnished requisite security which was accepted and a Writ was issued to him on the terms mentioned in the Writ. On 22-1-1951, a petition was; filed before the learned Subordinate Judge for stay of proceedings. The learned . Subordinate Judge directed the matter to be put up on 25-1-1951. The Receiver was directed to report by the said date if he had exercised any act of possession. On 22-1-1951, the petitioners filed an appeal in this Court against the order of the learned Subordinate Judge appointing the opposite party No. 1 as Receiver. This was registered as First Miscellaneous Appeal No. 36 of 1951. On 22-1-1951, the Receiver went to Hetampur to take possession but he failed to get possession, either of the 'Sherista' of the Trust Estates or of the papers relating thereto. On 24-1-1951 the Receiver made a report to the Court for direction as regards the papers of the trust estates. On the same date, a telegram was received from the petitioners' learned Advocate in this Court, informing the petitioners' Pleader in the Court below that this Court had admitted the appeal filed by the petitioners and that this Court had granted 'ad interim' stay of further proceedings. On receipt of the telegram, the learned Subordinate Judge 'made a further order on the same date directing that the matter be put up on 25-1-1951. The order which was made by this Court was an 'ad interim' order staying possession of the Receiver if he had not already taken possession This Court also called for a report from the learned Subordinate Judge. On 27-1-1951, the Receiver appeared before the learned Subordinate Judge through his Pleader, Mr. R.P. Mukherjee. On 29-1-1951, the Receiver filed a statement of the realisations made by him. The statement is dated 25-1-1951. The statement shows that upto 24-1-1951, the Receiver had realised a sum of Rs. 20/87- in respect of the Brajabala Trust Estate and a sum of Rs. 657117- in respect of Ram Ranjan Trust Estate, aggregating a sum of Rs. 86/37-. The statement also shows that before 25-1-1951, the-Receiver had realised a further sum of Rs. 1,030-/14/-. The total sum which was realised by the Receiver upto 25-1-1951 aggregated to a sum of Rs. 1117/1/-. It does not appear, not has it been suggested that the Receiver has realised any other sum in respect of the trust estates. The learned Subordinate Judge then proceeded to make an enquiry on the question as to how far the Receiver has been able to taken possession. After enquiry into this matter, by Order No. 48, dated 10-2-1951, Mr. Malli Nath Mukherjee, the learned Subordinate- Judge of Birbhum, reported that the Receiver was not allowed possession by the principal defendants who are in possession, that on 22-1-1951, the Receiver had realised a sum of Rs. 20/8/- and that on 24-1-1951, he had realised a further sum of Rs. 65/11/-. The learned Subordinate Judge further stated that this was all the realisation the Receiver had made before the order for stay was received. In the result, the learned subordinate Judge was of the opinion that the Receiver had taken possession only of a part of the estate and that he had not taken possession of any of the properties in the 'Khas' possession of the trustees. This report was sent by tne learned Subordinate Judge on 18-2-1951. It appears that on 7-7-1951, the Receiver who had filed his accounts of the trust estates made an application before the learned Subordinate Judge for direction in the matter of the passing of accounts, and as regards the salary which he was entitled to. By an order dated 26-7-1951, the learned Subordinate Judge was of the opinion that the Receiver was entitled to a sum of Rs. 693/8/- on account of his salary and costs apto 28-2-1951. The learned Subordinate Judge also directed that in regard to the salary for the months of March to June, 1951, the plaintiff must deposit a sum of Rs. 2,000/-. There was no clear direction as to whether the Receiver was entitled to the salary for these months. Against this order of the learned Subordinate Judge dated 26-7-1951, the petitioners moved this Court in revision. It appears from the affidavit in support of this petition that the petitioners did not press the petition then filed against the order of the learned Subordinate Judge dated 26-7-1951 and that it was accordingly dismissed. There is no counter-affidavit on this point.