GULAB SINGH Vs. BHAN MAL

JUDGEMENT

(1.) THE plaintiff filed a suit against Manohar Lal, Bhan Mal and Jamna Lal in the court of Munsiff, Kota, on 5-11-60 for dissolution of partnership and for rendition of accounts. A preliminary decree was passed on 9-2-61, and Shri Kan-haiya Lal, advocate, who had already been appointed a receiver during the pendency of the suit, was also appointed commissioner to go into the accounts and to carry out thedirections contained in the preliminary decree. While the matter was pending for passing of final decree, an application was made by the plaintiff on 12-5-63 to the effect that the receiver, viz. Shri Kanhaiya Lal, had not carried out his duties inasmuch as he did not file the report in time and also did not file suits against several debtors of the partnership firm with the result that claims amounting to about Rs. 20,000/-due to the firm, became time barred. It was, therefore, prayed that the receiver Shri Kanhaiyalal may be directed to make good the loss occasioned to the plaintiff on account of his gross negligence in carrying out his duties as a receiver. Shri Kanhailal gave a written reply and refuted the allegations made against him. He pleaded that he had filed a number of suits, some of which had been decreed. He also submitted that the parties had not co-operated with him in disclosing the correct state of affairs of the firm. He further stated that the firm used to keep duplicate and triplicate sets of accounts with the result that the correct position of the firm could not be known without the assistance of the parties. The learned Munsif recorded the statement of the plaintiff Gulab Singh on 5-2-64 and by his order dated 25-2-64 dismissed the plaintiff's application holding that there was no material on the record on the basis of which the receiver could be made liable for payment of any amount to the plaintiff. Aggrieved by the order of the learned Munsif the plaintiff has filed this revision.

(2.) MR, Rastogi, learned counsel for the non-petitioner Mr. Kanhaiyalal, raised a preliminary objection regarding the maintainability of the revision. He urged that the order under revision clearly falls within the ambit of Order 40 Rule 4 C. P. C. , even though no provision has been mentioned in the application. It is argued that an order passed under Order 40, Rule 4 C. P. C. is appealable under Order 43 Rule 1 (S), C. P. C. and since no appeal has been filed, this revision is not maintainable. For a* correct decision of the point raised by Mr. Rastogi, it is necessary to see whether the order passed by the learned Munsif comes within the ambit of Order 40, Rule 4, -C. P. C. which reads as follows :-

(3.) COMING to the merits of the case, the question is has the lower court committed any error in exercise of its jurisdiction ? The learned Munsif has held and doubtless correctly, that the allegations made by the plaintiff in his application dated 17-563, are vague. The only material allegation contained in the application is that the receiver did not look into the papers in time and did not file suits against some debtors with the result that the claims to the tune of Rs. 20,000/- became time barred. No details of the debtors have been given nor it has been mentioned, which debts had become time barred and when. No particulars of wilful default or negligence on the part of the Receiver have been mentioned. Even in his statement, the plaintiff has not been able to supply any material in this connection and the learned Munsif is right in his observation that on the material as it stood it was not possible for any court to come to the conclusion that the Receiver had committed any wilful default or negligence. There does not appear any ground to take a different view of the matter from the one taken by the learned Munsif. 1 am informed that the suit has been disposed of and the matter is not pending before the trial court in any form. In these circumstances no useful purpose would be served by giving directions to the learned Munsif for making a further probe into the matter.