BALDEO SAHUJEE Vs. GAURI SHANKAR JHUNJHUNWALA

JUDGEMENT

(1.) The events leading to the institution of these two cases are as under: Rai Saheb Baldeo Sahujee instituted a suit for specific performance of a contract for sale of a mill and obtained a decree for the same. The plaintiff was required to deposit a sum of Rs. 1,55,000, being the balance of consideration money after deducting a sum of Rupees 10,000 which had already been paid in advance as earnest money and he deposited the said amount in court. The defendants having failed to execute a sale deed in favour of the plaintiff, the same was executed by the Court, An appeal against the decree preferred in the High Court ultimately failed and an application for leave to appeal to the Supreme Court also was rejected. During the pendency of the appeal in the High Court, defendant No. 7, who was a subsequent transferee of the Mill with notice of the contract made in favour of the plaintiff, was appointed a receiver for the working of the mill and the management of the business. The receiver, admittedly, did not run the mill, and the plaintiff's case is that as a result of the non-working of the mill, the machinery rusted and the plaintiff suffered a loss thereby. Accordingly, the plaintiff made an application in the court below for appointment of a commissioner to inquire into the loss sustained by the plaintiff, and the learned Subordinate Judge appointed a pleader Commissioner for the same on 18-12-1954, Defendant No. 7 applied for a review of the order appointing pleader Commissioner, but the same was rejected on 7-2-1955. He, therefore, filed two civil revision applications in this court, being C. R, No. 143 of 1955, and C. R. No. 144 of 1955 against the two orders referred to above, namely, the order appointing a pleader Commisisoner to make inquiry into the loss and the order rejecting the review application. Both these civil revision applications were disposed of on compromise the terms of which were (1) that the pleader commissioner appointed by the court below to examine accounts and for ascertainment of compensation for wilful default and gross negligence on the part of the judgment debtor No. 7 will not begin his work unless the question of liability against judgment debtor No. 7 has been decided by the court itself (2) that before judgment debtor No. 7 hands over the charge of the machinery as a receiver, a pleader commissioner will be appointed to note down the present condition of the machinery with the help of a mechanic and (3) that the plaintiff-decree-holder will take over the possession of the machinery once its condition has been noted down by the pleader Commissioner with the assistance or a mechanic. Thereafter, the plaintiff made an application in the court below for determination of the liability of defendant No. 7. The application was opposed by the defendant, and the learned Subordinate Judge accepting his objection rejected the application on the ground that the question of liability would be decided only by the institution of a separate suit and not in the summary proceeding in that Court. Against the order rejecting the application, the plaintiff has presented both the civil revision application and the miscellaneous appeal by way of precaution.

(2.) Mr. Sinha has contended that no appeal lay against the order in question, and as such, the same was not maintainable. Mr. Das appearing for the appellant, has conceded that the appeal did not lie. It has also been held in Chaparaddi v. Kabil Molla, AIR 1943 Cal 244 that such an appeal is incompetent. The appeal, therefore, has to be dismissed, but without any costs. The matter in controversy, therefore, has to be dealt with in our revisional jurisdiction in the above civil revisional application.

(3.) The learned Subordinate Judge took the view that the question as regards the liability of the receiver raised various complications and could not be decided in the summary proceeding specially when huge amounts have been claimed in the case and no detail which will be necessary for ascertaining the same has been claimed. He held that this question could only be decided in a properly constituted suit, and in coming to that conclusion he placed reliance on a decision of the Calcutta High Court in Subal Chandra Kar v. Jatindra Mohan Ghose 99 Ind Gas 761: (AIR 1927 Cal 175(1): ILR 53 Cal 881) and on a Madras case in Somasundram v. Kannammai, AIR 1944 Mad 392. As regards the question whether the receiver was guilty of wilful default and gross negligence, he observed that as the running of the mill was stopped, it must be said to be wilful default and gross negligence of the receiver. Mr, Das appearing for the petitioner has contended that the learned Subordinate Judge having found that the receiver was guilty of wilful default and gross negligence ought to have decided the question of his liability under the provisions of the Order 40, Rule 4 of the Code of Civil Procedure. On the other hand, Mr. Sinha, appearing for defendant No. 7 opposite party, has contended that in view of the fact that a huge amount has been claimed as against the receiver and in view of the fact that any order that may have been passed by the learned Subordinate Judge in this summary proceeding was non-appealable, the court below was justified in directing the parties to agitate the matter in a properly constituted suit. He has also submitted that the court below has not come to any definite finding that the receiver was guilty of wilful default and gross negligence, though he has made such an observation in the sense that there might be a prima facie case with regard to such wilful default and gross negligence.