K.L. Krishna Ayyar vs T. Balakrishna Ayyar

Pakenham Walsh, J.—The plaintiff, counter petitioner, sued the petitioner for the recovery of Rs. 2,111 6-3 as due on settlement of

accounts in the purchase of silk sarees from the plaintiff from April 24, 1931.

He put in an application for the appointment of a Receiver and at the same time he asked for an order that the defendant should produce the

account books of his own sales of silk sarees etc. into Court on the ground that if he were allowed to collect the amounts he would (para. 6 of

affidavit) keep them in cash to cheat the Plaintifi and further that (para. 8):

It is quite likely that the defendant is trying to keep false accounts and unless the account books are brought into the Court and a Receiver is

appointed to collect the amounts due, there will be no way of realising the money thereafter, after the decree is passed.

Admittedly the account books in question have nothing directly to say to the suit accounts on which the suit is brought. The Court ordered the

defendant to produce these accounts into Court. His Advocate refused to produce them wherefrom the Court passed the order in question in

which it says

Under Section 151, I have the power to compel the production of account books. 1 hereby direct the defendant to produce the account books in

Court on Monday 7th instant failing which, a complaint will be laid against him for disobedience of this Court''s orders. J he question as to whether

plain till will be permitted to see the account books will be considered after the books are produced into Court

Against his order the present Revision Petition is filed on the ground that it is beyond the jurisdiction of the Court.

The learned Advocate for the Petitioner states before me that a further reason was also given for the non production of the accounts, that they

were in Mysore. This, does not appear on the records in, the suit, and as I think that the order is clearly ultra vires, I do not consider it necessary

to go into this matter. The petition for ft Receiver was made, as stated above, in the same application as that in which the production of accounts

was asked his Although no section is quoted in the petition for Receiver that would of course be under Order XL, Rule 1 and there is no difficulty

as regards that part. The question is whether, before the appointment of a Receiver and in this case in the very application for a Receiver, when

notice has not yet gone to the defendant, the plaintiff can ask or the Court can compel the defendant to produce accounts, which are not connected

with the suit, simply in order that the plaintiffs, if be gets a decree may be in a better position to realise his decree debt

From the order of the Court itself it is clear that it was asked to exercise this power and did sounder its inherent powers u/s 151. It is well

established that where there is a prescribed remedy the Court cannot go beyond this remedy by using its inherent power u/s 151. Now the object

of appointing a Receiver is to provide a machinery by which the Court can take charge of the general property of the defendant during the trial.

That is the suitable remedy in a case like this and it is the object with which the Plaintiff asks for a Receiver to be appointed. If the Court can,

without any notice to the defendant and without appointing Receiver, directly take charge of the defendant''s property the whole procedure of

appointing, a Receiver, and the well known principles which should govern the discretion of the Court in doing so, vanish, for by this shortcut they

are all avoided. There is no proviso at all in the CPC in the order about appointing a Receiver that pending the appointment of a Receiver, the

Court can exercise these powers. The learned Advocate for the counter-petitioner made a feeble attempt to justify the order under Order XVI,

Rule 10 and 16 and also under the Injunction Rules, Order XXXIX,

Order XVI, Rules 10 and 16 do not determine the powers of the Court to call for documents but only the procedure to be followed when they are

called for. They are irrelevant to the present question,

In my opinion Order XXXIX, Rule (1) cannot possibly be extended to cover a case of this kind. Rule 1 (a) is inapplicable because the account

books are neither the property in the suit nor connected with it. They are toe accounts of defendant''s trade, and plaintiff only wants them in order

that if lie gets a decree he may get all that defendant has really collected in his own business. Rule 1 (6) is, I consider, also inapplicable to the

circumstances of this case. It states that:

Where in any suit it is proved by affidavit or otherwise that the defendant threatens, or intends to remove or dispose of his property, with a view to

defraud his creditors, the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying

and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Courts thinks fit, until the disposal of the suit or

until further orders.

Now the allegation in para. 6 of the affidavit is that:

Defendant is collecting the amounts due from his customers and keeping them in cash to cheat the plaintiff and other creditors.

It is not even stated that he is going to dispose of this cash and it is indeed difficult to see how he is going to collect the amounts from his

creditors in most cases except in cash. If petitioner, therefore, really wants anything under; this paragraph it would be an order to prevent the

defendant from collecting his dues in cash. That would be a very unreasonable order and, so far from preventing waste of the property, would be

much more likely to cause it by creating bad and time-barred debts; in any case it is not the relief which has been asked for or granted. Paragraph

7 of the affidavit says that:

After the amounts are collected, there will be no use of any decree being got against the defendant unless the sums are got into the Court.

That is the justification, if it can be made but, for appointing a Receiver but not for taking a shortcut by ordering the defendant to produce all his

cash or property into Court at once. Now it is not alleged that the defendant is going to ""waste, damage, alienate or sell"" his account books. There

remains, therefore, the question whether the words removal or disposition of the property can authorise the order passed. The only allegation on

this point is that It is quite likely that the defendant is trying to keep false accounts. Now the property which plaintiff wants to realise is not the

defendant''s accounts which are useless per se to him, but the money which defendant may collect by realising dues on the basis of his accounts. In

my opinion he cannot by injunction be ordered at this stage to produce those accounts into Court. Even if Order XXXIX, Rule 1 (6) should in

terms apply, it is clearly over ridden by the special provisions of and other Order and Rule.

This is Order XXI, Rule 41, and it comes into effect only after a decree has been passed. Then the decree-holder may apply for ,an order to

the Court that the judgment debtor ""be orally examined as to whether any or what debts are owing to the judgment debtor, and whether the

judgment debtor has any and what other property or means of satisfying the decrees: and the Court may make an order for the attendance and

examination of such judgment-debtor, and for the production of any books or documents. This Order and Rule which definitely restrict the rights of

the party to call for such accounts till after a decree is obtained will, on the principle that a more particular overrides a more general provision, limit

the application of Order XXXIX, Rule 1 (6) even if the latter is in its terms applicable, nor can be inherent powers of the Court be invoked to

justify the issue of such an order at an earlier stage and thereby completely nullify the restriction laid down in Order XXI, Rule 41. It may be noted

that nobody seems to have contended before the lower Court that the order sought for could be regarded as an injunction under Order XXXIX,

Rule 1 (a) or (6). The Court states expressly that it is passing the order in virtue of its inherent power u/s 151. I am clearly of opinion that this

section does not authorise it to extend, the provisions of Order XXI, Rule 41.

The learned Advocate for the Respondent did not in fact base his chief argument on the CPC at all, but fell back on, or rather put in the

forefront, Section 165 of the Evidence Act.

This section runs:

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time of any

witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing ; and neither the parties nor

their agents shall be entitled to make any objection to any such question or order, nor without the leave of the Court, to cross-examine any witness

upon any answer given in reply to any such question.

Then follow certain provisos which admittedly do not apply to the present case. From this the learned Advocate argues that, the Court can

order the production by a party of any document or thing, no matter how irrelevant, into Court. This is indeed a startling doctrine, and if correct

would authorise the Court, to say to the defendant, in a simple money suit:

Although they are not of the slightest relevancy to the suit you must bring your entire possessions into Court on a certain date and if you do not you

will be criminally prosecuted.

It fact on this reading the defendant might be asked to bring into Court something that did not belong to him at all, or, which was absolutely

unobtainable.

These grotesque results arise from overlooking the plain proviso at the beginning of the section by which the whole is governed that the

direction must be ""in order to discover or to obtain proper proof of relevant facts."" The commentaries show clearly that the object of allowing the

Judge to ask irrelevant questions under this section is to obtain "" indicative evidence"" which may lead to the discovery of relevant evidence. It is not

alleged in this case that the object of the order is to discover or obtain proof of any relevant fact in any matter then before the Judge The stage at

which these accounts would be relevant facts so as to enable the Court to order their production is after decree under Order XXI, Rule 41. If the

meaning put on this section by the learned Advocate for the Counter-Petitioner be correct, there is no need at all for any rules about appointment

of Receivers, or discovery of documents. In fact a Court has absolute power to lay a (criminal complaint against a party, and get him convicted for

disobedience to any arbitrary demand to produce any property whether his own or not, if it cannot be brought under Sections 120 to 130 of the

Evidence Act and most property does not fall under these sections.

I cannot accept the argument raised under this section. The order I consider is plainly without jurisdiction and must be set aside. The petition is

allowed with costs in both Courts. (Fee Rs. 50).