K. S. MISHRA Vs. MAHADEO DEWAJI

JUDGEMENT

(1.) A few facts which are relevant for the decision of the question involved in this revision are as stated below. The non applicants (who shall hereinafter be called debtors) were adjudicated insolvents on 4-10-1938 on their own application dated 16-6-1932. The order of adjudication was annulled on 3-4-1935 as a result of a composition scheme sanctioned by the insolvency Court. The debtors failed to carry out the terms of the composition scheme and consequently they were re-adjudged insolvents on 26-3-1941. On 18-3-1941, Mr. K.S. Misra, Advocate (the applicant in this Court) was appointed a receiver and his remuneration was fixed at 3 per cent. on realizations and 2 per cent. on distributions. He continued as a receiver till 31-8-1944, when his tenure as a receiver ended as a result of an order of annulment passed by the insolvency Court Under Section 43, Provincial Insolvency Act. As a part of the same order date 31-8-1944, the insolvency Court again vested the insolvents' property in Mr. K.S. Misra with direction to bring it to sale with all speed. Thus the property remained vested in him as appointee, of the insolvency Court from 31-8-1944 to 21-11-1944 when the insolvency Court finally gave up its control over the insolvents' property and it vested in the debtors.

(2.) THE only saleable property of the debtors was their share in the absolute occupancy fields. But for the interference and delaying tactics of the debtors, this property could have beer brought to sale immediately and sold away in 1941. In that event the receiver would have been undoubtedly entitled to his commission on the sale proceeds and on the amount distributed amongst the creditors. In fact, however, the receiver was not able to sell the property and the position now is that in spite of his work as a receiver he is entitled to nothing by way of commission under the terms of his appointment which were fixed within the limits permitted by Rule 14 of the High Court Rules framed Under Section 79, Provincial Insolvency Act.

(3.) . The learned Counsel for the applicant urged that the payments alleged to be made by the debtors privately to their creditors should be deemed to have been realized and distributed by the receiver and the receiver's commission should be calculated on that basis; he relied on Briji Kessoor Laul v. Official Assignee Madras A.I.R. 1920 Mad. 219. This contention has however no force in view of the fact that at the time the debtors satisfied their debts privately they were no longer insolvents, the insolvency proceedings as such having already terminated as a result of the order of annulment.