LACHMINARAYAN MODI Vs. HNAIK AND CO

JUDGEMENT

(1.) This appeal is directed against the order passed by the learned Subordinate Judge of Cuttack dated 23-10-1943, calling upon the Receiver to pay certain sums of money to the auditor for work done in connection with the preparation of income-tax return to be filed before the income-tax authorities and auditing the Receiver's accounts. The Receiver obtained sanction from the Court-for having his accounts audited in order to facilitate the submission of income-tax return in respect of the estate under his charge so as to obviate difficulties experienced previously in the matter of getting the income-tax authorities to accept the returns filed on behalf of the estate. The auditor submitted two bills for work done, namely, (1) for Rs. 250 in respect of the period 31-10-1940, to 25-3-1941, and (2) for Rs. 2394 for work done for audit of the accounts for the period between 26-3-1941, and 8-11-1942. It appears that neither the Receiver nor the parties to the suit accepted either the accuracy of the details of the work done by the auditor, or the reasonableness of the demand made by him. The Court has accepted the auditor's bills aforesaid in their entirety and directed the Receiver to pay the outstanding amount, namely, Rs. 2244, after deducting the amount of Rs. 400 already paid to him. The learned Subordinate Judge only disallowed the claim for Rs. 125 made by the auditor for his appearance before the Income-tax Officer. Prom the aforesaid orders of the Court below the plaintiff has come up in appeal to this Court. The defendants and the auditor have been impleaded as parties respondents to this appeal.

(2.) Mr. Mahapatra appearing on behalf of the auditor has raised two preliminary objections to the hearing of this appeal, namely, (1) that such an order is not appealable within the meaning of Order XLIII, Rule 1, Clause (s), Civil P.C. and (2) that the Receiver not being a party to this appeal, it is not competent. Reliance was placed on behalf of the respondents on the cases in Palaniappa Chetti v. Palaniappa Chetty A.I.R. 1922 Mad. 234 and Gurumutthi Ayyar V/s. Ramaswami Chettiar A.I.R. 1931 Mad. 760 in support of the contention that the appeal is not maintainable in the present case. But, in my opinion, neither of these two cases is applicable to the facts of the present case. Both these cases discuss the applicability of E. 4, 0, XL, Civil P.C. They only lay down this proposition that no appeal lies against an order giving directions to the Receiver to pay a certain sum of money into Court which is not followed by an order of attachment of his property. Rule 4, 0. XL of the Code provides that in certain cases enumerated in Clauses (a) to (c) of that Rule the Court may direct the Receiver's property to be attached and to be sold, the sale proceeds to be applied to make good any loss occasioned by him or any amount found due from him. But, in the present case, no such question has arisen. As a matter of fact, the Receiver is not personally interested in the orders passed by the learned Subordinate Judge in the present case. In effect the learned Subordinate Judge has called upon the Receiver to apply a portion of the assets of the estate in his hands in a particular way, that is to say, for payment of the auditor's bills. Such a direction, in my judgment, comes within the purview of 0. XL, Rule 1(1)(d), Civil P.C. This view finds support from the decision of the Calcutta High Court in Eastern Mortgage and Agency Co. Ltd. v. Fakuruddin Mohamed (13) 17 I.C. 849. In that case the Receiver had been directed by the Court, upon the application of the judgment-debtor, to pay certain sums of money to him in order to enable him to prefer an appeal against the decree passed in the suit itself in which the Receiver had been appointed. In that case also a preliminary objection had been taken to the competency of the appeal. Their Lordships repelled that contention and held that the words of Clause (d), Sub-rule (1), Rule 1, Order XL are wide enough to cover the case before them. The facts and circumstances of that case are similar to those of the case before us. The decision of a single Judge of the Madras High Court in Sambasiva Chettiar v. Secy. of State A.I.R. 1940 Mad. 703 also supported the view that the appeal is competent, as the order passed by the Court directing the Receiver to pay certain sum of money to the Government was covered by E. 1, 0. XL. It must, therefore, be held that the orders passed by the Court below are appealable.

(3.) The second objection to the maintainability of the appeal is that the Receiver is not a party to this appeal. The simple answer to this contention is that the Receiver is not personally interested in this controversy between the parties to the suit on the one hand and the auditor on the other. The Receiver has to carry out the orders of the Court. The Court below directed him to pay the bills submitted by the auditor out of the collections made by him of the rents and profits of the estate in his hand. If the appellate Court were to pass any orders reversing or varying the orders passed by the Court of first instance, the Receiver will be bound to carry out the appellate orders. Hence, in my opinion, it was not absolutely essential that the Receiver should have been made a party to this appeal. The appellant is not seeking any relief against the Receiver. The appeal is in effect directed against the orders of the Court below making the estate liable for the payment" of the large bills submitted by the auditor. Hence, the auditor is the person principally interested in the result of this appeal, and he has been impleaded as respondent 1 in this appeal. Certainly it would have been argued with much greater force, if the auditor had not been impleaded as a party to this appeal, that the appeal was not competent. I would, therefore, overrule the second objection also as to the maintainability of the appeal.