KEDARNATH HIMATSINGKA Vs. RANI PRABHABATI SAHEBA

JUDGEMENT

(1.) These are consolidated appeals from two separate but identical orders of the High Court of Judicature at Patna dated 23 January 1939 and 26 January 1939, respectively, in civil Revision No. 563 of 1938 and Miscellaneous Appeal No. 89 of 1932, which affirmed the order of the Subordinate Judge of Dumka dated 15th August 1938. The appellant before the board is the receiver appointed by a consent order of the High Court dated 23 December 1932, in consolidated Miscellaneous Appeals Nos. 89-93 of 1932, of a Ghatwali tenure known as the Hendwe Estate held by respondent 10, the proprietress of the said estate under the Banaili Raj, represented by respondents 1 to 9. Shortly stated, the main question for determination is whether the appellant has a prior right to reimburse himself from the collections of the estate in respect of certain loans advanced or raised by him to and for the estate at the express orders of the Subordinate Court and the High Court on various occasions, before paying certain decretal amounts and dues to the Banaili Raj. These amounts became due subsequent to the decrees which had been passed by the Subordinate Judge of Bhagalpur, which were then under appeal to the High Court in A. S. Nos. 19-23 of 1931. The Courts in India have answered the question against the appellant.

(2.) The relationship betweeen the Banaili Raj and the Hendwe Estate is that of landlord and tenant with this difference, that the holders of the Hendwe Estate hold it on Government Ghatwali tenure, and as such, the estate is not liable to be sold in execution of a decree for rent, though deliberate and persistent default on the part of the Ghatwal to pay rent may constitute misconduct in relation to his office, for which he is liable to dismissal by Government: see 14 Pat. 701at p. 206. Respondent 10 is the life-holder of the Hendwe Estate, holding it under the Banaili Raj at an annual rent of about Rs. 12,000. As the rent was in arrear, the Banaili Raj instituted four suits against respondent 10 in the Court of the Subordinate Judge of Bhagalpur and also a suit for declaration that the estate is liable to sale for default in payment of rent. On 19 September 1930, the suits were decreed. The arrears of rent decreed amounted to about Rs. 1,16,000 besides interest and costs. Respondent 10 filed appeals Nos. 19 to 23 of 1931 in the High Court of Patna against the said decrees. Meanwhile, the Raj took out execution of the decrees, whereupon respondent 10 preferred miscellaneous appeals Nos. 89 to 93 of 1932 in the High Court, which were all consolidated. On 23 December 1932, a consent order was passed by the High Court on a compromise petition, to which the respondents were parties, whereby the appellant was appointed receiver of the Hendwe Estate with all the powers under O. 40, Rule l (d), Civil P. C. Paragraphs 2, 4, 5 and 11 of the order, which are important in connexion with this appeal, are as follows : Para. 2.-The receiver undertakes to this Hon'ble Court to pay to the decree-holders a sum of Rupees 50,000 on of before 30 June 1933, and a further sum of Rs. 40,000 on or before 30th Jane 1934, and the balance of decretal amounts in execution on or before 30 June 1935, provided that the judgment-debtor shall be living at the dates mentioned and the receiver shall not have been discharged for any reasons whatsoever. Para. 4-For the purposes aforesaid the receiver is authorised to raise loans of Rs. 50,000 and Rs. 40,000 and Rs. 40,000 as and when required at interest not exceeding 12 per cent. and attorney charges at 2 per cent. besides actual out of pocket expenses. If the judgment-debtor can arrange loans on better terms, the receiver will take loans so arranged. Para. 5-The receiver do continue as such receiver until the sums advanced by him or raised by him as loans as aforesaid or under any other order or orders of the Court are paid. Para. 11.-The amounts advanced by the receiver or raised by him as loans will be a first charge on the estate and on the realisation.

(3.) Pursuant to the above order, the appellant raised or advanced the sum of about Rs. 1,20,000 for payment to the decree-holders. In accordance with various orders made by the Subordinate Judge of Dumka the appellant raised and advanced further loans of about Rs. 1,32,478. On 14 February 1934, the High Court made an order authorising the appellant "to raise such loans as may be required for meeting the expense of the litigation" by which was meant the appeals then pending in the High Court. The Court provided that "the loans will be raised subject to the rights of the Banaili Raj ..." On 9 April 1934, the High Court made a further order "by consent of parties and in the presence of the receiver," (appellant) by which he was authorised to raise loans for the purpose of meeting the expense of the appeals and the personal expenses of the appellant and the payment of the insurance premie and charges incidental thereto.