NRISHINHA KUMAR SINHA Vs. DEB PROSANNA MUKHERJEE

JUDGEMENT

(1.) This is an appeal by a Receiver in insolvency; there is also an application for revision made by him in the alternative, and they are directed against an order passed by the learned Subordinate Judge of Burdwan on 7 January 1934, rejecting an application made by the Receiver praying that certain mortgaged properties which are now in the custody of the Court, through a Receiver appointed by the Court, be made over to the Receiver in insolvency. It appears that in mortgage Suit No. 53 of 1922, a Receiver was appointed by the Subordinate Judge of Burdwan, at the instance of the mortgagee, plaintiff in the suit, on the ground that it was just and convenient that a Receiver should be appointed for protecting the mortgaged properties from being sold in auction for non-payment of Government demand and rent.

(2.) The order appointing a Receiver was made on 5 April 1924, and payments towards satisfaction of the mortgage-debt were being made by the Receiver under the direction of the Court, from time to time. The mortgagor was adjudicated an insolvent by the District Judge of Murshidabad, and the Receiver in insolvency was appointed by the learned Judge. Thereupon, on 2 September, 1933, the District Judge of Murshidabad addressed a letter to the Subordinate Judge of Burdwan, intimating that the Receiver in insolvency was in possession of the other properties of the insolvent, mortgagor, and that the Receiver appointed by the Subordinate Judge should make over charge of the mortgaged properties to the Receiver in insolvency. On the Subordinate Judge's expressing the view in his letter in reply to the District Judge of Murshidabad, that the Receiver in insolvency might be directed to appear before him to satisfy him that a direction as mentioned by the District Judge could be given as a matter of law and equity, the Receiver in insolvency made an application to the Subordinate Judge of Burdwan, praying the Court to direct the Receiver appointed in the mortgage suit to deliver possession of the properties committed to his charge to him (the Receiver in insolvency). The application thus made was rejected, and hence this appeal and the application for revision in the alternative. It may be mentioned at the outset that there is no appeal from the order passed by the Subordinate Judge in the case before us, on 27 January 1934, as there is no provision either in the Civil Procedure Code or in the Provincial Insolvency Act, which could confer a right to appeal; and nothing has been placed before us in support of the position that an appeal as preferred to this Court was maintainable under the law. The appeal must therefore be dismissed on the ground that no appeal lay to this Court from the order complained of. The case before us was allowed to be argued on the application for revision made in the alternative.

(3.) The facts relevant for the purpose of our decision are not in dispute, and we have no hesitation in stating that we are in agreement with the Court below, in the view expressed in its judgment, that the mortgaged properties belonging to the insolvent were in the custody of that Court not only for the benefit of the mortgagor but also for the benefit of the mortgagee, and that it was more to the benefit of the mortgagee at whose instance a Receiver was appointed in the mortgage suit. The Receiver was in point of fact making payments to the mortgagee decree-holder in satisfaction of the mortgage, in compliance with the direction of the Court. The question then arises, was the Receiver appointed in the mortgage suit a person who could be removed by the insolvency Court?