NURUDDIN AHMED, RECEIVER Vs. SUBODH CHANDRA MITRA

JUDGEMENT

(1.) THIS is an appeal by a Receiver appointed in Suit No. 930 of 1911 instituted on the Original Side of this Court. The suits was one for administration and partition, and the order appointing the Receiver was in the usual form. On the 31 January 1917 an order was passed by the Original Side of this Court giving liberty to the appellant to sell certain of the premises of which he had been appointed Receiver, namely 203, Lower Circular Road, for the purpose of paying off the mortgage that existed on the property. I understand that since the date of that order the mortgage referred to in the order of the 31 January 1917 has been paid off. Subsequent to the appointment of the Receiver the parties who were interested in the properties mortgaged their interest in those properties to the respondent before us. The mortgagee under that mortgage commenced a suit in the Court of the Subordinate Judge of the 24-Parganas to enforce his Mortgage, and apparently having heard that the Receiver was contemplating selling the properties for the purpose of paying costs and commission he applied to the Subordinate Judge to restrain the sale by the Receiver. The Receiver opposed the application for injunction, but ultimately the injunction was passed. THIS is the order against which this appeal is directed and, in my opinion, the order of the Subordinate Judge was clearly wrong, It was not competent for him to restrain the Receiver performing his duties as a Receiver, and the proper course is for the parties, if they desire to prevent the sale by the Receiver, to apply on the Original Side in the suit on notice to the Receiver, asking the Court to direct the Receiver, not to sell the property, an offering, if they are so advised, to pay any sum that may be due either for costs or commission payable by the Receiver. The order of the Subordinate Judge of the 26 September 1924, restraining the Receiver, is, in my opinion, wrong and misconceived, and accordingly, we set aside the order of the Subordinate Judge of the 26 September 1924.

(2.) THE respondent has mistaken his remedy and must pay the costs of this appeal. We assess the hearing fee at two gold mohurs.