GIRDHARAN PRASAD MISSIR Vs. A MAJID PLEADER RECEIVER

JUDGEMENT

(1.) This appeal is directed against the order of the Subordinate Judge of Motihari, dated 25-1-1950 fixing the remuneration of the receiver, Mr. A. Majid, to be a sum of Rs. 2,061 and odd and permitting the receiver to take out execution for the amount against the plaintiff.

(2.) From the order-sheet it appears that Mr. A. Majid was appointed as a receiver on 5-11-1948. An appeal was preferred to the High Court on behalf of defendant 1 against the order of the Subordinate Judge appointing the receiver. The appeal was allowed by the High Court, and the receiver was removed from his office on 3-1-1949. For the period during which he had worked, the receiver submitted a bill for a sum of Rs. 2,444/6/11. The bill was checked and passed by the learned Subordinate Judge for a sum of Rs. 2,061/6/11. On 16-9-1949, the learned Subordinate Judge ordered that the plaintiff should pay the amount to the receiver, in default, execution would be taken out for the amount against the plaintiff. Subsequently, the plaintiff objected before the learned Subordinate Judge stating that the receiver was to get only ten per cent of the amount of collection but his bill had been passed for more than that amount. The objection was rejected by the learned Subordinate Judge on 25-1-1950.

(3.) When the hearing of the appeal commenced, Mr. J.C. Sanyal took a preliminary objection that the appeal was incompetent, and ought not to be maintained. Learned counsel pointed out that the order for the payment of the remuneration of the receiver was made by the Subordinate Judge under the provisions of Order 40, Rule 2, Civil P. C., which was not appealable. It was conceded by learned counsel that, if the order had been passed under Order 40, Rule 1, or under Order 40, Rule 4, an appeal could have been taken out by the plaintiff. To this, it was contended on behalf of the appellant that the order of the learned Subordinate Judge fixing the remuneration of the receiver was an order made under the provisions of Order 40, Rule 1(d) or an order under Order 40, Rule 4. Mr. Ashwini Kumar Ray pointed out that, in the order of appointment, the Subordinate Judge had fixed the remuneration of the receiver to be ten per cent of the net amount of the proceeds collected from the estate. Learned counsel argued, therefore, that the remuneration of the receiver was to be paid from the rents and the profits of the estate, and so" the matter would be governed by Order 40, Rule l(d), and, therefore, subject to appeal. In our opinion, there is no substance in this 'argument. The order fixing the remuneration of the receiver is in the nature of a special order coming within the scope of Order 40, Rule 2. In view of this special procedural provision, it is difficult to hold that the matter of remuneration is governed either by Order 40 Rule 1 or by Order 40, Rule 4. In this connection, it is not a relevant consideration whether the remuneration of the receiver is to be paid out of the rents and profits of the estate, in his hand or not. Even if the remuneration is to be paid to the receiver from the rents and profits of the estate, the matter would properly fall within Rule 2 which states that "the Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver." If this is the correct position, it follows that no appeal lies against the order I passed by the Subordinate Judge in. this case. This view is supported by the decision of the Calcutta High Court in - T. C. Tweedie v. Pokea Khatun', AIR 1915 Cal 74(A) and of the Lahore High Court in - 'Ghafur Ali v. Mt. Kamen', AIR 1930 Lah 352 (B).