Bhagwan Das vs Sheonandan Prasad Sahu

This is an appeal against an order of the Additional Subordinate Judge of Monghyr appointing Babu Mahesh Narain, Pleader, as Receiver until partition is completely effected, or until the further orders of the Court. The appellant is defendant No. 1. The suit is a suit for partition brought at the instance of the plaintiff, a minor, through his next friend, his mother. In Allen v. Lloyd [1879] 12 Ch. D. 447 Jessel, M.R., pointed out that "It is a settled rule that one of the parties to the cause shall not be appointed Receiver without the consent of the other party unless a very special case is made out." This rule is undoubtedly subject to exception in partnership and partition cases. But in partnership cases the exception is limited in this way:

If the partner actually carrying on the business has not been guilty of such misconduct as to have rendered it unsafe to trust him, the Court sometimes appoints him Receiver and manager without a salary." (Kerr on Receivers, 7th edition, page 143).

Reference was made on behalf of the appellant to the decision in Suprasanna Roy v. Upendra Narain Roy 18 C.W.N. 533 where the defendant, in a partition suit, actually in possession of the property, was appointed Receiver. Now, so far as the judgment in that case goes there were no charges of misconduct against the defendant. But in the present case, we must be bound by the findings in the judgment delivered by the learned Subordinates Judge in making the preliminary decree for partition; and there is also a report by a Commissioner. In view of the findings of the learned Subordinate Judge and of the Commissioner''s report, it is in our opinion, not reasonable to expect honest and disinterested management from the defendant, and it is to be remembered that the plaintiff is a minor under the guardianship of a pardanashin lady and therefore peculiarly entitled to the protection of the Court. The learned Subordinate Judge has, in the exercise of his discretion, decided the case against the defendant and has appointed a third party as Receiver. We do not think that it would be right in the circumstances of this case to interfere with the exercise of his discretion.

It has been objected, however, that the remuneration of 7 per cent. on the collection imposes too severe a burden on the estate. We think that 7 per cent. is too high and the Subordinate Judge should reconsider it. Five per cent. ought to be sufficient and the Subordinate Judge will see whether he cannot obtain a suitable person to act as Receiver on this remuneration. The name of Jamuna Prasad has been mentioned on behalf of the appellant. Without in any way, fettering the discretion of the learned Subordinate Judge, we think that this name might be considered along with others. It has also been contended on behalf of the appellant that the cost of the Receiver should be charged to the plaintiff; but in our opinion, there is no justification for such a course.

With these observations, the appeal is dismissed with costs and the application in revision is also dismissed with costs.