R M P PALANIAPPA CHETTI Vs. MSAPLPALANIAPPA CHETTI

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Ramnad made under Order 40, Rule 4, C.P.C. against the Receiver appointed in O.S. No, 68 of 1916 on his file directing attachment of his property as he failed to pay into Court the sum of Rs 36,100 directed to be paid. It is not denied by the respondent that an appeal lies under Order 43, Rule 1, Clause (s). But it is contended by Mr. Jayaram Iyer for him that as the amount which the Receiver was directed to pay was fixed by the Court under Rule 3 and as there is no appeal provided against orders under that Rule it is not open to the appellant to question in this appeal the amount fixed as due from him by the lower court, in other words he says that order has become final. We are unable to accept this contention. The fact that no appeal is given under Rule 3 is clearly due to the Receiver not being domnified by any order under that rule. It is only when an order is passed under Rule 4 that any injury will be caused to the receiver and he will have a grievance. That is the reason why an appeal is given under Rule 4. Rule 4 says 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. We think it is clearly open to the receiver in appeal to show that the amount fixed as due by the lower Court is not really the amount due from him but a very much smaller amount only is due. Nothing in the rules in out-opinion prevents him from questioning in appeal the correctness of the amount said to be due from him. If we hold otherwise it will practically reduce the appeal under Rule 4 to something of very little use. For he would then only be able to object on grounds such as that he had not failed to pay the amount. We therefore overrule the objection of the respondent that it is not open to us to consider in appeal the correctness of the amount fixed as due from him by the lower court.

(2.) Coming to the merits of the order of the lower Court we cannot help saying that we are unable to understand the Subordinate Judge's calculations. It is very difficult to follow his reasoning by which he arrived at the figure Rs. 36,100 as approximately due from the receiver. The learned Vakil for the respondent has not been able to throw much light on the way in which the Subordinate Judge has arrived at this figure. We also notice that the Subordinate Judge has not fixed the exact amount of the Receiver's indebtedness. He has made what he says an approximate estimate and then directed the receiver to pay. This we think is not the right procedure. What he should have done was to direct the receiver to submit his accounts for the period during which he was in possession of the properties; and then give the plaintiff an opportunity to surcharge, and falsify them and raise his objection to them. If the court finds that the matter would take an unnecessarily long lime for disposal the proper procedure would then be to refer the accounts and the objections to a commissioner and to direct him to go through it carefully and make a report; and on that report after hearing the objections to decide the exact amount which the receiver is liable to pay. After that the receiver should have been directed to pay into Court the amount due within a certain time fixed by the Court. If he fails to pay that amount without proper reason within the time fixed, the court could then pass an order directing the attachment of his property under Rule 4. In the circumstances of this case it is impossible for us satisfactorily to dispose of the appeal on the materials before us. Therefore we set aside the order of the Subordinate Judge and remand the case to him for disposal according to law in the light of our observations. The respondent will pay the costs of the appellant in this appeal. The security that has been given by the appellant in his stay application will continue till the disposal of this application against the receiver by the lower Court.

(3.) The Judgment of the Court was delivered by the Hon ble Mr. justice Krishnan.