Nanda Lal Banerji vs Jogesh Chandra Baneeji

Das Gupta, J.—This case provides a sad commentary on how dilatory proceedings in our courts help designing persons. Nandalal Banerji, the present Appellant before us, filed a suit in 1939 against his two brothers Jogesh Chandra Banerji and Suresh Chandra Banerji with regard to what was alleged to be an absolute debater and prayed therein for removal of those two Defendants from the office of shebaitship, for the framing of a scheme for the management of the debater, for the appointment of a receiver ''pendente lite and for taking accounts from the Defendants Nos. 1 and 2 as regards the amounts received by them. The matter was referred to arbitrators and a decree was passed in accordance with the award of the arbitrators. One of the terms of the award was that a scheme of management as set out in the award will come into operation as soon as a decree was passed. In that scheme of management, it was provided that, so long as there will remain any debts of the debater estate, Nandalal Banerji will alone manage the whole estate and will perform all the religious duties and will submit yearly accounts which will be checked and passed by the court after hearing objections. It was provided further that he, as receiver, will alone perform all the duties of an administrator of the estate, will be entitled to pray for and obtain directions and permission of the court whenever necessary and will possess all the powers under Order XL, Rule 1" Code of Civil Procedure, and will be entitled to bring and defend all suits on behalf of the deity without any express permission therefore. On January 19, 1949, the Defendant No. 1 made a prayer to the court for directing the receiver to restore to him the possession of the portion of the premises No. 51, Joy Mitra Street, Calcutta, which had been vacated by him. This application was opposed by the receiver and on March 28, 1949, the court passed the following order:

The application be allowed on contest. The receiver shall pay Petitioner Rs. 32 as cost of this application and hearing. He shall further vest the Petitioner with possession of his part of the premises. If his sons refuse to move away, he should report the matter to this Court in a fortnight''s time. Arrangement shall then be made for getting them removed by due process of law ; and this Court shall make due provisions for safeguarding the interest of the Petitioner in the litigation that may crop up.

While passing the order, the learned subordinate judge observed that it was most unfortunate that, without receiving a specific order from the court, the receiver had inducted his own sons as tenants of the premises.

Instead of carrying out the directions of the court as mentioned above, the receiver moved this Court against that order and obtained on April 11, 1949, an order from this Court staying the operations of the directions passed by the learned subordinate judge. That Rule was, however, finally discharged on December 21, 1949. Thereafter, on January 4, 1950, the receiver informed the court that, though notice had been issued on his sons for making over possession of the house to Jogesh Chandra Banerji, the sons had refused to make over possession. There was then an application by the Defendant No. 1, Jogesh, that he should be appointed special receiver for the purpose of taking proper steps for restoration of this portion of premises No. 51, Joy Mitra Street, and the receiver, Nandalal Banerji should be directed to put him in sufficient fund for taking a litigation. That application was allowed by the court below by its order dated February 22, 1950. The receiver filed an appeal against the order passed by the court below and also filed an alternative application for interference by this Court with the order u/s 115 of the CPC in case it was found that no appeal lay.

The main contention on which the order is attacked is that the court below had acted without jurisdiction in ordering appointment of a special receiver. It is true that there is no definite provision in law for appointment of a special receiver. The circumstances of the case are, however, peculiar. The receiver who was managing the property under the terms of the scheme of management of the award, which formed part of the decree, was clearly trying his best to defeat the court''s directions instead of carrying them out. As the learned subordinate judge observed that it was difficult to expect that the receiver would do his duty-irrespective of the question of the harm to his sons. Whether or not the description of the learned subordinate judge, that he is the most unreliable man, tricky if not dishonest, is wholly justified, it is not unreasonable to expect, taking human nature as it is and not as it should be, that Nandalal Banerji would not move properly in progressing the suit for the ejectment of his sons. That he did not like the idea is amply proved from his past conduct. Though the court passed an order directing Jogesh to be put in possession of his house some time in March, 1949, and though three years had elapsed that direction had not been carried out. The greater part of this delay is due to the conduct of the receiver.

We are not prepared to agree with the learned advocate that in such circumstances as this it is not open to court to make proper arrangement to see that its orders are carried out. We do not think it necessary for the purpose of the present case to go into the question whether whenever a receiver has been appointed under the terms of an award, which award is made part of a decree, it will be in the absence of any special circumstances open to the court to remove the receiver as easily as when a receiver is appointed directed by the court under the provisions of Rule 1 of Order XL of the Code of Civil Procedure. There can be no doubt, however, that, if the removal or partial removal of a receiver cannot be made under the ordinary provisions, as we find in the CPC the court in the exercise of its inherent jurisdiction has the right and the duty to make such an order. In the present case we think that the interest of justice does require that such an order should be made.

The appeal is, therefore, dismissed with costs-payable by the receiver personally the hearing fee being assessed at 5 gold mohurs.

No order is necessary on the application.

Lahiri, J.

I agree.