RADHA KANTA PAL Vs. BENODE BEHARI PAL

JUDGEMENT

(1.) This is an appeal by the plaintiff against an order of the Subordinate Judge of Bakargunge, dated 2 June, 1933, by which he appointed defendant 2 as receiver in a suit commenced by the plaintiff for dissolution of partnership. The writ which was issued in pursuance of the order appointing the receiver is in the following terms: Whereas it has bean found necessary that a receiver should be appointed in this case for the proper management of the Firms mentioned in the schedule below, you are hereby appointed receiver of the said property under Order 40, Rule 1, Civil P. C., 1908, with full powers under the provisions of that order.

(2.) We shall have to say something hereafter with regard- to- the form of the writ which was issued on the receiver. The plaintiff made an application for the appointment of a receiver on 3rd} May 1933 having filed his plaint on 10 April 1933. The Subordinate Judge was of opinion that a case had been made out for the appointment of a receiver and that it was just and convenient in the interests of the Firms, the dissolution of which was sought for in the suit, that a receiver should be appointed for the realisation of the assets and for management of the Firms and for protection of the properties and that the receiver should be one of the partners of the Firm, namely defendant 2. This order has been challenged in appeal by the learned Advocate-General who appears for the plaintiff and he contends that the order appointing one of the parties to the suit without the consent of the other parties and in particular of his client the plaintiff, is contrary to the principles on which the jurisdiction of the Court to appoint a receiver is founded. He contends that on the face of the plaint the partnership, the dissolution of which is sought for is a part-nership-at-will and that the very institution of the suit operates as dissolution. In support of this contention he refers to para. 1 of the plaint from which it appears that the plaintiff is an outsider and has no connection with the family of the defendants, his case being that there was a karbar in the name of Ganga Prosad Pal, predeoessor-in-interest of the principal defendants and of Sonatan Pal, the predecessor-in-interest of the plaintiff in Jhalakati popularly called Maharajganj Bandar, and he contends that in appointing defendant 2 as receiver for the purpose of carrying on the business of the Firms, the Subordinate Judge evidently missed sight of the fact that this was a partnership-at-will and that the institution of the suit operated as its dissolution. As against this contention Mr. Chakrabarti, who appears for the respondents, contends that this was really a joint family business and as such could not be regarded as a part-nership-at-will.

(3.) There is however no foundation for this contention, in view of the case which is made in the plaint from which it appears clear that Ganga Prosad Pal and Sonatan Pal were two persons not connected with each other as members of a joint Hindu family but were carrying on the karbar separately, each havIng a share to the extent of nine annas and seven annas respectively in the said business. If this fact had been brought to the attention of the Subordinate Judge or if he had noted the true implication of this statement in the plaint he would not have proceeded to pass the order in the form in which the writ was drawn up and which is in accordance with the portion of the order which has already been quoted that the receiver was to carry on the business or the management of the Firms. In all eases of partnership the true rule is that a receiver is generally appointed for the purpose of realising the assets of the karbar with a view to its winding up and for such purpose, namely, with a view to the winding up of such business to carry on the business in so far as is [necessary as incidental to such winding up. There is no warrant whatever for an order in the form in which it has been made by the Subordinate Judge, namely, that the receiver was to carry on the proper management of the firms mentioned in the schedules to the plaint.