HARSAMONI DEI Vs. PADMANAVA SAHU AND ORS.

JUDGEMENT

(1.) THE Plaintiff in Original Suit No. 77/62.1 is the Appellant in this Miscellaneous Appeal.

(2.) THE Plaintiff, Appellant herein was appointed receiver of the suit property as per order No. 19 dated 4 -7 -1968 in First Appeal No. 62/65 arising out of the aforesaid Original Suit. Later on, by order No. 24 dated 7 -4 -1970 passed in the said First Appeal this Court directed the Plaintiff to file in the trial Court the accounts in respect of the property of which she was in charge as a receiver for the period beginning from 22 -10 -1968 onwards. Defendant No. 1 who had been appointed as receiver previously was also directed to submit his accounts from March, 1968 till 22 -10 -1968. We are not concerned in this appeal with the latter -mentioned aspect of the matter.

(3.) MR . Das, the learned Counsel for Respondent No. 1 (Defendant No. 2 in the Original Son), at the outset contends that his appeal has become infructuous and is liable to be dismissed in limine as the legal representatives of the deceased Defendant No. 1, who were parties in the said Fast Appeal, were not noticed in this appeal as expressly desired by the Appellant. There is substance in the above -mentioned contention of Mr. Das. The said legal representatives, as I find, figure as Respondents 2 to n in the memorandum of this appeal. I find from order No. 5 dated 12 -9 -1972 of this Court that Mr. Swain, the learned Counsel for the Appellant, asked this Court to dispense with notice Respondents 2 to 11 on the ground that the said Respondents did not appear in the Court below and no relief also was claimed against them in this appeal. On Mr. Swain's above submission notice on the said Respondents was dispensed with at the risk of the Appellant. As notice of this appeal on Respondents 2 to 11 has thus been dispensed with, the above -mentioned finding of the Court below, that the Plaintiff receiver was liable to the extent ot Rs. 9, 915/ - on the above account, cannot be interfered with in any manner in so far as it relates to the said Respondents. The suit is for partition of the suit property between the Plaintiff and Defendants 1 and 2. Accordingly the Plaintiff, Defendant No. 2 and the legal representatives of Defendant No. 1 are all interested in the suit property and the usufructs and/or the income accruing therefrom during the pendency of this Suit. As the Plaintiff was appointed as the receiver of the suit property and the Court below has arrived at the finding that she was liable on that account to the extent of the aforesaid amount, the legal representatives of Defendant No. 1 have certainly interest in the aforesaid amount assessed by the Court below. That being so, in this appeal, without affording an opportunity of hearing to the said legal representatives, the aforesaid order of the Court below cannot be interfered with as desired by the Plaintiff. By not taking notice on the said Respondents the Appellant has prevented the said legal representatives from making their submission on the merits of this appeal and so in existing state of affair no relief can be granted to the Appellant in this appeal. So the appeal has become infructuous and is liable to be dismissed on the above account.