ANAND MAHANTI Vs. GANESH MAHESWAR

JUDGEMENT

(1.) We are invited by the petitioner in this Rule to make an order of a novel- character. The opposite party belongs to a family of hereditary priests attached to the temple of Jagannath. He applied to be adjudicated an insolvent under the Provincial Insolvency Act, 1907. An adjudication order was made, and subsequently, under Section 44, a conditional order of discharge was passed. Against that order an appeal has been preferred to this Court by the creditor. The latter now applies for the appointment of a receiver to take charge of what is described as " pilgrim business", during the pendency of the appeal. The question arises, whether what is described as "pilgrim business" is a business of which the Court will appoint a receiver. It has been stated to us that the insolvent, as a hereditary priest, receives pilgrims, houses them, feeds them, looks after their comfort and accompanies them to the temple of Jagannath; for these services he receives from the pilgrims a fee, which is in the nature of a voluntary payment. It has been asserted on behalf of the creditor that the insolvent earns a considerable sum of money in this way, and that a receiver should be appointed, if not to look after the conduct of this business, at any rate to take possession of the money as soon as it is earned. On behalf of the insolvent, it has been contended, on the other hand, that under Section 20, Clause (c) of the Provincial Insolvency Act, the receiver may, by leave of the Court, carry on business of the insolvent so far as may be necessary for the beneficial winding up of the same, but that the receiver should not carry on the business in expectation of profit. This contention is well founded, and is supported by the decision in Exparte Emmanuel (1881) 17 Ch. D. 35, 39, where it was pointed out that ordinarily the business of the insolvent may be carried on by the receiver, not with a view to profit, but only in so far as may be necessary for the beneficial winding up of the same. The principle is well settled that the Courts are generally averse to assuming the management of a business, except as incidental to the object of the proceedings and for the purpose of closing it up and dividing the assets. In this connection, reference may be made to In re Manchester and Milford Railway Co. (1880) 14 Ch. D, 645, 653, where Jessel M. R. explains the distinction between a receiver and a manager: see also Moss Steamship Co. v. Whinney [1912] A. C. 254 In re Leas Hotel Co. [1902] 1 Ch. 332, 333. Boehm v. Goodall [1911] 1 Ch. 155, 158. In re Newdigate Colliery [1912] 1 Ch. 468, 472.

(2.) In the case before us, the object of the creditor is, it is admitted, not to stop the business, but to carry it on. There is a further difficulty in the way of the appellant; what the priest does for the pilgrims cannot appropriately be described as "business" within the meaning of Clause (c) of Section 20. The object of the appellant is that the insolvent should act as a priest, and that he may be constantly attended by the receiver, so that the latter may take possession of all his earnings; this clearly is not contemplated by Section 20. Our attention, however, has been drawn to Sub-section (1) of Section 40 of the Provincial Insolvency Act, which provides that the Court may appoint the insolvent himself to superintend the management of his property or of any part thereof, or to carry on his trade, if any, for the benefit of the creditor. This is plainly of no assistance to the appellant, for the exercise of his calling by the insolvent, under the circumstances stated, cannot be deemed a "trade" within the meaning of Sub- section (1) of Section 40; besides, the creditor seeks that an outsider, and not the insolvent himself, should be appointed to, carry on this business. We are of opinion that this order the creditor is not entitled to obtain.

(3.) The result is that the Rule is discharged, but there will be no order for costs.