CHAPARADDI ALIAS SAPARADDI GAZI Vs. KABIL MOLLA, RECEIVER OF ESTATE OF CHAPARADDI ALIAS SAPARADDI GAZI

JUDGEMENT

(1.) The facts giving rise to this appeal may be shortly stated as follows : One Kabil Molla, whose heirs the present respondents are, instituted a suit in the Court of the Subordinate Judge at Alipore for recovery of money due on a mortgage bond against two persons viz., Saparaddi Gazi the appellant before us, and his brother Dhonai Gazi. The suit was registered as Title Suit No. 5 of 1933. On 12 April 1933, Kabil Molla was appointed a receiver in respect of the mortgaged property pending the hearing of the suit and the writ of possession was delivered to him on 28 April following. The suit itself was disposed of on 19 February 1934, and there was a decree made in favour of the plaintiff. The plaintiff, however, continued to remain in possession of the property as a receiver and it appears that he assigned the decree to his wife who started execution proceedings in connexion with the same. On 22nd July 1935, the receiver for the first time submitted accounts in Court. The Court made an order on that date to the effect that the Sheristadar should check the accounts and report after giving notice to the pleaders for the parties. Nothing however seems to have been done till 13 May 1936 when the accounts for another year were submitted by the receiver, and the Court directed on that date that the Sheristadar should check both the accounts after giving notice to the pleaders of the parties. On 22 May, 1937 that is to say, more than a year after the above order was made we find the following order recorded. "Read the report of the Sheristadar. The accounts for years 1310, 1341 and 1342 are passed."

(2.) On 1 June 1938, the receiver filed accounts for the years 1343 and 1344 B.S. and they were passed on 30 June 1938. The accounts for the years 1345 and 1346 B.S. were filed by the receiver on 9 December 1939 and on 10 February 1940, the defendant appellant filed a petition of objection in which he set out various allegations of misappropriation, negligence and wilful neglect on the part of the receiver. According to the applicant the estate suffered loss to a considerable extent by reason of these acts of wilful default and he prayed that an enquiry might be made into these allegations and that the loss might be made good out of property belonging to the receiver. On 29 June 1940 this matter was heard by the Subordinate Judge in the presence of both sides and the contention raised on behalf of the receiver was that these questions could not be gone into in a summary proceeding and that the remedy of the defendant lay in a separate suit to be filed against the receiver. The Court came to the conclusion that so far as the accounts for the years 1345 and 1346 B.S. were concerned which were not yet passed by the Court, these allegations of willful default and gross negligence should be gone into, but the accounts of the previous years which were already passed could not be re- opened. It is against this order that the present appeal has been filed by the defendant and the point raised on his behalf is that the Court below was wrong in refusing to allow the question of wilful default and negligence to be enquired into with regard to matters covered by the accounts of the previous years.

(3.) Mr. Das appearing on behalf of the respondents has taken a preliminary objection. His contention is that the appeal is incompetent inasmuch as the order complained of does not come under Order 40, Rule 4, Civil P.C. The contention prima facie seems sound. Order 40, Rule 4 of the Code contemplates an order of attachment of the property of the receiver when the receiver fails to submit his accounts or to pay the amount due from him as the Court directs or occasions loss to the property by his wilful default or gross negligence. Here what was done was that the receiver's accounts for some years were passed and the defendant was not allowed to reopen these matters or to make out any case of wilful default or gross negligence in respect of them. The contention of the appellant seems to be that in passing the accounts of the receiver, the Court in substance refused to make any order under Order 40, Rule 4, Civil P.C., and its refusal to make an order under the rule is to be deemed to be an order made thereunder, and an appeal would be competent under Order 43, Rule 1, Clause (s), Civil P.C. In our opinion this contention is not sound although it is supported by the observations of the Bombay High Court in Shriniwas Kuppuswami Mudaliar V/s. M.C. Waz ( 21) 8 A.I.R. 1921 Bom. 427. So far as this Court is concerned the decision in Mohini Mohan V/s. Ram Narain Patra ( 11) 14 C.L.J. 445 is to the point and agreeing with that decision we are of the opinion that the appeal is not competent and that the only remedy of the aggrieved party is by way of revision under Section 115, Civil P.C.