SUBAL CHANDRA KAR Vs. JATINDRA MOHAN GHOSE

JUDGEMENT

(1.) This is an appeal by two defendants in a suit against the Receiver, Mr. B.N. Mitter, and the ground of their controversy with the Receiver is that they say that he has improperly dealt with certain portions of the premises under his management; has failed "to exercise reasonable diligence for the recovery of certain rents in respect of certain premises; has failed to let them out and has been guilty of breach of his duty. The matter came before Mr. Justice Buckland upon a summons in Chambers and that summons was supported by a somewhat lengthy petition.

(2.) It appears that the application was not made in connexion with any accounts which the Receiver had filed or which were in course of being passed in Chambers of the Court under Ch. 21 of the Original Side Rules. It came on, therefore, as an independent motion or summons, and the learned Judge took the view that the ruling of Mr. Justice Sale in the case of Coomar Sattya Sankar Ghosal V/s. Ranee Golapmonee Debee [1900] 5 C.W.N. 223 was to the effect that such an application, first of all, could not be entertained when the Receiver was passing, his accounts and, secondly, should be made by a suit.

(3.) Learned counsel, Mr. Bagram, for the appellants, has contended before us that while it may be true that this question of wilful default does not arise when a Receiver is passing his accounts in the office of the Court on an ordinary occasion, nevertheless on principle the right of a party is to seek his remedy from the Court which appointed the Receiver and that the learned Judge ought not to have relegated him to a suit or ought to have treated this application as a suit.