SURENDRA NATH SARKAR Vs. NAGAR CHAND GOENKA

JUDGEMENT

(1.) These are appeals against an order refusing to discharge a receiver, and the first point to be decided is whether such an appeal is maintainable. Under Order 43, Civil P.C., an appeal may be preferred against an order passed under Rule 1 of Order 40, and it is urged on behalf of the appellant that an order refusing to discharge a receiver is virtually covered by Order 40, Rule 1. Order 40, Rule 1 merely enables the Court to appoint a receiver of any property which is the subject-matter for suit whether before or after the decree. It is contended that under the General Clauses Act the power of removing a receiver must go with the power of appointing a receiver, and if the order for removing a receiver is appealable, an order refusing to remove or discharge a receiver must also be appealable. Mr. De, who has argued this point with great lucidity and skill, relies in support of his argument on Sripati Dass V/s. Bibhuti Bhusan Datta A.I.R. 1926 Cal. 593 and Manmohan Niyogi V/s. Surendrakumar Bay in which it has been held that an order directing the removal of a receiver is appealable. The only case in which it has been held that an order refusing to remove a receiver is also appealable is Abdul Kadar V/s. B.M.P. Chettjar Firm A.I.R.1938 Rang. 387, but, on the other hand, there are a series of cases in which it has been held that an order refusing to remove a receiver is not appealable: Eastern Mortgage & Agency Co. Ltd. v.. Premananda Saba A.I.R. 1916 Cal. 824, Ramaswami Naidu V/s. Ayyalu Naidu A.I.R. 1924 Mad. 614. In Anthony Ullyssess John V/s. Agra United Mills Ltd. it was held that where a Court appointing a receiver under Order 40 removes him from his office there is no right of appeal under Order 43. On this point there seems to be some conflict of opinion and I shall refrain from expressing any opinion on it in this case, but lit appears that the balance of authority is in favour of the view that the order refusing to discharge a receiver is not appealable, and I have no hesitation in coming to the same conclusion. It is conceded that the right of appeal against an order refusing to discharge a receiver has not been expressly conferred by any of the clauses of Order 43, but it is contended that the right of appeal must be deemed to have been conferred by implication, because the authority which has power to appoint a receiver must also by implication be deemed to have power to remove, and if there is a refusal to remove a receiver that refusal must have been ordered under the powers conferred by Order 40, Rule 1. In my opinion, the best reply to this line of reasoning is offered in Anthony Ullyssess John V/s. Agra United Mills Ltd. just referred to, in these words: Where a right of appeal has to be expressly conferred by statute, it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic. I have, therefore, no hesitation in holding that this appeal cannot be entertained as an appeal.

(2.) Mr. De, however, contends that his memorandum of appeal should be treated as an application in revision and that it should be held that the order of the Court below is without jurisdiction. In order to appreciate this point it will be necessary to refer to certain facts. It appears that the plaintiff and the defendant entered into a partnership with regard to the business of rice-mill for a period of three years and later on the plaintiff being dissatisfied with the management of the defendant, who had become a managing partner under the agreement of partnership, had recourse to a clause in the partnership deed which provided that in case of any dispute or difference arising between the parties such dispute or difference shall be referred to arbitration in accordance with the provisions of the Arbitration Act. In accordance with this clause a proceeding was started under the Arbitration Act and that proceeding is treated as a suit: In this proceeding a receiver was appointed at the instance of the plaintiff and in spite of the opposition of the defendant. Now, the plaintiff has asked the Court to remove or discharge this receiver, and the defendant has opposed his prayer. The learned Subordinate Judge who was asked to remove the receiver has held that the receiver cannot be removed. The argument put forward by Mr. De is that inasmuch as the partnership was to come to an end after the expiry of three years and upon the expiry of that period the mill which was worked as a result of the partnership agreement was to revert to the original position and become the property of the plaintiff, the Court had no jurisdiction to direct that the receiver should continue to manage a mill which is now the exclusive property of the plaintiff (appellant). In my opinion, the argument is not sound in law. The learned Subordinate Judge has the jurisdiction to allow the receiver to continue so long as the suit is pending before him. It must be remembered that the proceeding in the Court below is more or less analogous to a suit for account and dissolution of partnership and until the account is fully rendered the Court has the jurisdiction to retain the receiver. Mr. De drew our attention to the fact that in this particular case it would work great hardship upon his client if the receiver is allowed to continue to manage the mill, and he also referred to the fact that in this proceeding it is his client who is the plaintiff and who has come to Court as an aggrieved party complaining against mismanagement by the defendant. This Court, however, cannot in dealing with an application in revision go into the merits of the case. It is for the learned Subordinate Judge who is in seisin of all the facts of the case to consider what is the equitable order to be passed in the present proceeding, and I have no doubt that the learned Subordinate Judge will bear in mind the equities of the case when he is asked to pass an order affecting the property of which the plaintiff claims to be the owner. I see, however, that this proceeding is being unduly prolonged and I would direct while dismissing the appeals and the revision that the arbitration proceeding should be brought to a conclusion with utmost expedition and without undue delay, and the Court should see that neither party is prejudiced by the mill being managed in an inefficient manner. The respondents will get their costs of appeal. Reuben, J.

(3.) I agree.