KESHVADEO BAGLA Vs. RAM PRASAD SINGH

JUDGEMENT

(1.) These are two appeals by the plain-tiff from two orders of the learned Subordinate Judge of Darbhanga, passed on the accounts submitted by the present appellant as receiver for one period and by a Board of Receivers, of which the appellant was a member, for another period. By the orders complained against, the appellant was directed to deposit certain sums of money as due from him and these sums of money were then paid out of the security money, which the appellant had deposited when he was appointed receiver, in one case, and in the other out of a sum of RS. 1378-2-0 standing to the credit of the appellant.

(2.) The short facts are the following. There was a cinema house at Darbhanga belonging to two parties, one represented by Babu Krishna Prasad Singh (called defendants first party) and the other represented by Babu Ram Prasad Singh (called defendants second party). One Ganga Prasad Singh had two sons, Mahamaya Prasad Singh and Saraswati Pragad Singh. Mahamaya Prasad Singh had & son called Maksudan whose son is Babu Krishna Prasad Singh. Saraswati Ptasad Singh had two sons of whom Babu Ram Prasad Singh is one. It was stated that on 31st August 1939, the appellant took a lease of the cinema house for five years. On 14th April 1944, there was an agreement between the defendants first party and the present appellant by which the defendants first party contracted to sell their half share in the property to the appellant for a consideration of Rs. 10,000. This agreement led to a suit for specific performance (Title Suit No. 86 of 1944). The suit was decreed by the first Court, but dismissed on appeal. It is stated that an appeal to the Federal Court is pending. On the same day, that is, 14th April 1944, there was another agreement between the defendants second party and the appellant by which it was stated that the defendants second party agreed to lease their half share to the appellant till the 30th August 1951. This gave rise to another title suit (Title Suit No. 44 of 1946) for specific performance which the appellant lost throughout. Title Suit No. 86 of 1944, to which I have already made a reference, was instituted on 31st August 1944, The present appellant was appointed receiver in that suit on 16th April 1945. The suit was decreed on 26th February 1946. On 25th March 1946, First Appeal No. 76 of 1946 was instituted in this Court. The appellant continued to be the sole receiver from 16th April 1945 to 28th January 1946. From 29th January 1946 to 6th May 1946 there was a Board of Receivers consisting of the present appellant, one Jamuna Prasad Singh and Maulavi Halim Raza. Maulavi Halim Raza was the Chairman of the Board of Receivers, and it appears that he was the person appointed as pleader Commissioner to check the accounts which the appellant had 61ed for the period of his sole receivership. Therefore, the two periods with which we are concerned in these two appeals are, (a) the first period between 16th April 1945 and 28th January 1946 during which the appellant was the sole receiver, and (b) the second period from 29th January 1946 to 6th May 1946, during which there was a Board of Receivers of which the present appellant was a member. Miscellaneous Appeal no. 266 of 1946 relates to the first period for which a sum of Rs. 6984-10-0 has been paid to the defendants second party out of the security money of the appellant, on the ground that the profits made for this period were Rs. 13,348-12-3, half of which was payable to the defendants second party. The accounts for this period were checked by Maulavi Halim Baza. An objection was filed by the present appellant which was dismissed by the order of the learned Subordinate Judge dated 29th June 1946. For the second period the learned Subordinate Judge held the appellant liable to the extent of Rs. 453 and odd annas, and this sum was also paid out of another deposit standing to the credit of the present appellant. Miscellaneous Appeal No. 365 of 1946 relates to this second period, the accounts of which were also checked, strangely enough, by Maulvai Halim Raza who was himself the chairman of the Board of Receiver.

(3.) Before I go on to the merits of the two appeals, it is necessary to dispose of a preliminary objection raised on behalf of the respondents. It is contended that no appeals He against the two orders complained of. Under Order 43 Rule 1, Clause (s), Civil P. C., an appeal lies from an order under Rule 1 or Rule 4 of Order 40 Rule 4 of Order 40 states inter alia that where a receiver fails to pay the amount due from him as the Court directs, the Court may direct his property to be attached and may sell such property and may apply the proceeds to make good any amount found to be due from him. In the cases before us, the appellant was not merely directed to pay the amounts due from him, but the amounts were paid out of deposits standing to the credit of the appellant. In substance and effect, the orders passed by the learned Subordinate Judge were orders attaching the property of the appellant and paying the amounts from that property. In this view of the matter, I think that the preliminary objection as to the maintainability of the appeals must be overruled.